Cohabitee disputes and Civil Partnerships
When cohabitees separate they face the same painful experiences that a married couple face and similar broad issues such as how should they resolve difficulties concerning the children, financial provision for the children and between themselves.
However, unlike married couples, for whom there are detailed rules relating in particular to the financial aspects of the separation, the rule relating to cohabitees when they separate is still far from clear.
Whereas when a married couple have a child, both parents automatically have equal parental rights and responsibilities, if a child is born to an unmarried couple, those rights and responsibilities only automatically belong to the mother. The father will only automatically be presumed to have such parental rights and responsibilities if he has been named on the birth certificate of the child. Failing that or an agreement between the parties, the parents will have to apply to the family courts for assistance.
The courts can make exactly the same range of orders in relation to children of cohabitees as they can for those of married couples. The courts also adopt the same approach when considering applications, by asking if the order applied for is in the child’s best interests and welfare.
Whereas when married couples separate the court can make an order it believes is fair and reasonable for the parties when looking at their overall circumstances, the approach taken towards separating unmarried couples is far more restrictive. The law relating to cohabitees predominantly derives from the Trusts of Land and Appointment of Trustees Act. As a general approach the Courts will be interested in trying to clarify who owns what property or whether either or both parties have made a contribution to the ownership of an item of property, so as to gain a “beneficial interest”.
If you would wish us to advise you on your position it would be helpful if you would provide us with the following information and documents:-
- Details of the ownership of any land or assets owned.
- Discussions that took place prior to their purchase and any property or assets.
- Details as to who paid the deposit.
- Full details of who paid the mortgage payments.
- Details of any additional contribution made by you, for example, towards the property, e.g. funding or carrying out of the renovation of the property.
- Details of the solicitors who acted in the purchase of any such property.
- If you are renting a property, whether it is rented from the council or a private landlord and the amount of rent that is paid each week and whether the rental agreement is in your sole name, joint names or in the name of your cohabitee.
Unlike when married couples separate, cohabitees are not entitled to receive or pay maintenance to each other.
The courts approach to cohabitees alters where there are children. The court’s first consideration on looking at the financial requirements for the child is the child’s welfare.
If the cohabitees cannot reach an agreement concerning maintenance for the child then an application to the Child Support Agency may be made. However the court may be asked to make an additional maintenance award above the level determined by the CSA. This may happen where the parent not living with the child has a particularly high salary or if there are for example specific educational needs of a child.
When an unmarried couple without children separate and they both seek to obtain their share of the assets the law is solely concerned with contributions that one or both parties have made. But when there are children involved, the court considers whether or not a lump sum payment should be made for the benefit of the child. The most pressing need would be housing for the child and normally the court will look at the financial circumstances of the parties and then determine whether or not money should be made available to acquire a property to house a child.
If you require further information or advice on these issues then it would help us if you could give following additional information:
- Full names of your child/ren and their dates of birth.
- The current housing situation of you, your child/ren and your cohabitee.
- Details of the schools at which the child/ren attend.
- The likely cost of buying/renting in your current area, the catchment area of the school or where you may wish to live with the child/ren, if your child/ren will be living with you after you are separated.
The Civil Partnerships Act 2004 came in to force on 5 December 2005. The Act provides a framework for the resolution of financial disputes upon the breakdown of same sex relationships where there has been a formal registration of the relationship under the Act. Registration was allowed from 20 December 2005.
We are happy to advise on issues relating to civil partnerships. Rachel Woodd specialises in this area of law.
