"Common law” husband and wife?

Cohabiting couples are treated very differently by the law to those who are married or in a civil partnership and despite being in a lengthy relationship, may find they have very little legal protection when it ends.

There is a widely held myth that after living together for some time, couples become “common law” husband and wife. This is not the case.

Cohabiting couples are treated very differently by the law to those who are married or in a civil partnership and despite being in a lengthy relationship, may find they have very little legal protection when it ends.
 
Unlike divorce, there are currently no laws specifically providing legal protection to separating couples. This means we have to look to legislation relating to property and children in cohabitation disputes – most commonly, the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and the Children Act 1989.

What about the family home?

A major concern for separating couples is who will be entitled to remain at the shared home. The legal position depends on whether it is owned jointly or it is in the sole name of one party.

If ownership is shared, each party has a right to occupy the property. The purchase will have been structured in one of two ways, which are referred to as “joint tenants” or “tenants in common.”

A joint tenancy means that if one owner dies, their share passes automatically to the other. On this basis, it is likely that each party is entitled to an equal share on separation. Properties owned as tenants in common have a “deed of trust” or a “declaration of trust” that sets out each party’s share. This legally binding document is usually set up at the time the property is purchased and will demonstrate, for example, that if one party paid the deposit, he or she will receive this money back when the house is sold, before the proceeds are shared out.

When one party is the sole owner of the property, he or she has the right to live there and the other person has, on the face of it, no legal entitlement. However, if the non-owner can establish a beneficial interest, they may be able to claim a share that would give them a right to remain in occupation.

If you are the sole owner, you need to be aware that your partner may have a claim and could take steps to stop you selling the property without their agreement. In order to establish a beneficial interest, they would have to demonstrate it was always your intention that they would be entitled to a share by proving:

  • There is written documentation detailing this
  • There was an “understanding” or “common intention” that can be supported by financial or other contributions towards the household

If you are not the owner of the property, it can be very difficult to prove that you have a beneficial interest.

Does the situation change if there are dependent children?

If children are living with you, the law may give some limited extra protection to unmarried couples.

It may be possible to remain at the property with children if it is owned in joint names or in the other party’s sole name, until the youngest reaches 16, 18 or later if they go to university. If you cannot agree on what is to happen, the person wishing to stay may make an application to the court under the Children Act 1989.

Courts also have the power to make orders for payment of a lump sum or child maintenance. A one off payment has to have a specific purpose, such as expenses in anticipation of a child’s birth or the costs of converting a home for a disabled child.

What do I do now?

Our experienced specialists lawyers understand the worry and distress conflicts involving children can cause and approach all matters sensitively and sympathetically, for the benefit of all concerned.

We advise and represent children, parents, other family members and foster carers at all stages of the process. This starts from the earliest involvement of social workers and includes meetings, case conferences and any subsequent care or related proceedings, as well as the adoption process.


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If you are interested in understanding how Taylor&Emmet can help you with your family law issues then please contact:

Michaela Heathcote

Michaela Heathcote

Partner - Family Law

Tel: 0114 218 4000

Email: michaela.heathcote@tayloremmet.co.uk

Office: Sheffield

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