Protect your future
When a relationship is flourishing, the last thing that couples want to think about is what would happen to them financially if it ended. Given the statistics on relationship breakdown, however, and the legal morass that people can find themselves in, it pays to be forward-thinking.
A Common Misconception
“ S/he is my common law spouse – don’t I get half of everything?”
No, is the simple answer. There is no such thing as a common law marriage ; you are either married or not.
Married couples can ask the divorce courts to help them divide assets and income based on what is fair. Cohabitees do not have that same right; their claims are in essence limited to what they have contributed financially to an asset (or where a clear promise has been made that they will share in that asset).
An example:
Joanne and Pete have been married for 20 years and have two children under 18. Joanne works part-time, having given up her full-time job when the children came along. Pete is a traditional breadwinner, with a good pension.
If they divorced, Joanne would be able to claim enough provision for decent housing, a share of Pete’s pension and income, if her own was not enough to make ends meet.
If Joanne and Pete were not married, Joanne would find herself in a very different position.
She would not automatically be entitled to a share in the house if it was owned solely by Pete ; she would not be able to get a share of his pension and she would have no right to maintenance payments for herself (he would have to pay child maintenance but that is a separate form of income payment).
The law is confusing, complex and evolving as we speak. Cohabitees may get better legal rights in future years, but at present, they can find themselves in no man’s land.
So – to avoid ending up in an expensive form of chaos at the worst time.
So what can you do to try and limit potential future problems:
Pre-marital and Living Together Agreements
Before you marry or live together, consider drawing up a formal deed which sets out what will happen to assets and income if you split up.
A Pre-marital Agreement applies if you want to live together but intend to marry ; a Living Together Agreement is appropriate if you intend to cohabit in the longer term.
These kinds of agreements can also be drawn up for gay couples who want to enter into a Civil Partnership or who just want to live together.
These agreements are becoming more persuasive in court actions, providing they have been drawn up with the necessary formalities. It is vital that you get expert legal advice on the matter before agreeing anything with your partner. Please contact us to discuss your particular situation.
Declarations of Trust
Before buying a house together, do get specific legal advice about how you want to own the property.
A Declaration of Trust sets out your respective shares in a house and is particularly useful if you are each contributing different amounts to the purchase price or mortgage repayments.
Wills and Lasting Power of Attorney
As a cohabitee, you need specific advice on what would happen if your partner passed away.
Did you know, for instance, that if they were to die without a Will, you would not be entitled under the rules of intestacy to be treated as the next of kin? And further, that you would not automatically be entitled to inherit their estate?
Please see our section on Wills for further information
Child Maintenance
This area of law can be difficult to negotiate, given that the courts retain some powers to make financial orders for children but that most maintenance cases are dealt with by the CSA.
The Living Together Team can give detailed advice on how to navigate the various child maintenance options that are available.
