Last week we wrote here about the importance of cohabitation agreements, explaining what they are, and whether they are legally binding. This week we look in a little more detail into why you need a cohabitation agreement if you are in, or are about to enter into, a cohabiting relationship.
Cohabitation agreements serve various purposes, primarily outlining arrangements for children, property, and finances in case of relationship breakdown. This can ensure that each party is reasonably provided for following the breakdown.
In 2021 there were about 3.6 million cohabitating couples in the UK. The outcome of a cohabiting relationship breakdown is crucial for numerous individuals annually.
So what does happen if there is no agreement?
No legal recognition of “common law marriage” grants cohabiting couples the same rights as married ones. It is a myth. No matter how long the couple have lived together, their relationship will never become a ‘common law marriage’.
Accordingly, when a cohabiting relationship breaks down neither party has a right to claim any financial support for themselves from the other party, as they would if they had been married. Therefore they cannot claim maintenance for themselves, and they cannot claim a share of the other party’s property, including their pension.
Essentially, the legal position is simply that each party will keep what is theirs. If one party solely owns the home they shared, they retain ownership following the relationship’s end. Only in certain limited circumstances will a non-owning party be able to claim a share of the property, usually where they have contributed towards the purchase of the property.
All of this can obviously mean that at the end of a relationship the non-owning party can be left both homeless and destitute, no matter how long the relationship lasted.
The custodial parent may seek financial support, potentially including housing, from the other party for the children’s welfare. This could mean that they can remain in the property, even if it belongs to the other party. However, the property will revert to the other party when the children grow up, again leaving the non-owning party homeless.
To drive home the importance of entering into a cohabitation agreement, here are two real-world examples of what can happen on relationship breakdown if there is no cohabitation agreement.
Both examples are taken from research undertaken back in 2007 by the University of Bristol.
The first example came from a lady called ‘Frances’.
Frances and her partner met while they were both university students and started living together in their early twenties. They had four children together. After twenty years Frances decided to separate, due to her partner’s physical and emotional abuse. Frances obtained an injunction requiring her partner to leave the home.
Frances remained in the family home with the children, and obtained an order that they should reside with her.
The family home was owned solely by her partner, who also bought a second property, just prior to the separation.
At the time of the research Frances and three of the children were still living in the family home. The other child was living with her partner, in his second property.
Frances had not worked at all since having the children. Her partner, on the other hand, worked in the financial sector, and always brought in a high income.
We were told that Frances had accepted totally, “though with initial shock and dismay”, that she had no claim in her own right against either of her partner’s properties. She would only be able to remain in the family home during the children’s minority.
The second example came from a lady named ‘Helen’.
Helen and her partner began cohabiting, initially in her rented flat. Her partner then bought a derelict property, in his sole name. The couple then worked together doing major renovation works to the property. After a while they both moved in to the property.
During the three years they lived together, Helen paid an agreed sum into her partner’s bank account, as her share of the bills and mortgage.
The relationship broke down and Helen sought a financial settlement to recompense her for the work she had done to the property. But her partner refused to negotiate, and Helen eventually abandoned her claim, having spent £3,000 in legal costs.
The outcomes of both of these examples could have been so different if Frances and Helen had had a cohabitation agreement.
For further information on how we can help, please see our Cohabitation agreements page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
For more information about cohabitation agreements and how we can help, see this page.
Under the present law couples who cohabit in England and Wales have few rights against each other should the relationship break down. As we will explain later on, a cohabitation agreement eliminates this issue.
Despite common belief, there’s no ‘common law marriage’, granting rights similar to married couples after cohabitation for a specified duration.
In a cohabitation breakup, neither partner can seek maintenance, and property ownership remains separate: ‘what’s yours is yours.’
This can obviously result in considerable hardship for the party who is weaker financially.
The situation is particularly serious if the property in which the parties lived is owned by just one party, meaning that the other party can be left homeless. There are some limited ways in which the non-owning party can claim a share in the property, for example where they have contributed towards its purchase, but such claims are notoriously difficult and expensive.
In case of death, a cohabitant may face financial vulnerability as they don’t automatically inherit their partner’s estate.
Parties can mitigate these risks by drafting a cohabitation agreement before they start living together.
A cohabitation agreement outlines the division of finances, property, and child custody arrangements in the event of separation. Additionally, it can address arrangements if one party becomes ill or in case of death, complementing any existing wills.
Accordingly, the agreement can deal with such things as:
The specifics of the agreement will vary based on individual circumstances and the parties’ preferences.
A cohabitation agreement is legally binding if properly drafted, fair, and signed without coercion or pressure.
Both parties must fully disclose their financial situations before signing the agreement to ensure fairness and reasonableness.
Both parties should ideally seek independent legal advice before signing the agreement to ensure they fully understand its implications.
Note that if there is any change in the parties’ circumstances after the agreement is entered into, for example if they have children or purchase property, then advice should be taken as to whether the terms of the agreement should be reviewed.
A cohabitation agreement is a legal document and, as such, should really be prepared by a specialist lawyer, who will ensure that it is clear, that it properly gives effect to the agreed terms, and that it is legally binding.
Whilst you can try to save money by writing your own cohabitation agreement, this could well turn out to be a false economy if the agreement turns out not to be legally binding.
As is well known, the primary piece of legislation concerning the law relating to children is the Children Act 1989. But there has since been other legislation passed in relation to children law, including legislation that amends the Children Act itself. One such piece of legislation, and one of the most important since 1989, is the Children and Families Act 2014 (‘the 2014 Act’).
The 2014 Act is a lengthy statute, running to 140 sections and seven schedules. While we can’t cover all details here, the Act significantly impacted arrangements for children, addressing three crucial aspects.
It has long been recognised that family issues should best be resolved out of court, preferably by agreement.
Since the 1990s, mediation has been recognized as one of the most effective methods for couples to reach agreement.
The problem is that many couples are not aware of mediation, or that their case is suitable for mediation.
In about 2011 this was recognised by the introduction of Mediation Information and Assessment Meetings, or ‘MIAMs’ for short.
The MIAM informs the couple about mediation and assesses the suitability of their case for this process.
But initially attendance at a MIAM was not compulsory.
The 2014 Act changed that by stating that anyone wishing to make an application to the family court must first attend a MIAM, unless they are exempt from doing so, for example because they have been a victim of domestic abuse.
One of the more controversial reforms of the 2014 Act was an amendment to the Children Act.
The amendment introduced a requirement that, when considering an application to the court in relation to a child, the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
The reason that this was somewhat controversial is that it didn’t go as far as some people wanted. In some quarters, particularly those interested in fathers’ rights, it was argued that there should be a presumption that the child should spend equal time with each parent, unless there was a good reason why this should be so.
But the presumption of parental involvement didn’t say that. In reality, it is commonly believed that it had minimal impact on the courts’ decisions concerning children.
The last change in the 2014 Act that we want to mention is perhaps the most significant.
Again, this change amended the Children Act.
The Children Act introduced the terms ‘residence’ and ‘contact’, to replace the old terms ‘custody’ and ‘access’, which were considered to be outdated, particularly the word ‘custody’, which inappropriately implied physical ‘ownership’ of a child.
By 2014, the terms ‘residence’ and ‘contact’ were deemed outdated, with ‘residence’ implying a higher status for the parent with the order. It was thought that this perceived status made it more difficult for parents to resolve matters by agreement.
The Children and Families Act 2014 replaced ‘residence’ and ‘contact’ orders with the ‘child arrangements order’ in the Children Act.
A child arrangements order regulates with whom a child lives, spends time, and has contact, specifying when these arrangements occur.
Thus what was once called a ‘residence order’ is commonly referred to as a ‘lives with’ order. The term ‘contact’, still present in the definition of a child arrangements order, is commonly used for the non-residential parent.
For further information on how we can help, please see our Expertise pages.
It goes without saying that family law-related issues should be resolved by agreement if possible, rather than through the courts. But often the parties need help to reach agreement. This is where family mediation comes in. Family mediation is a voluntary process of assisted negotiation, where an independent, professionally trained, mediator helps couples resolve issues. Family mediation typically involves a number of meetings between the couple and the mediator. So what happens at a mediation meeting?
Before we answer that we should briefly mention another type of meeting related to mediation: the Mediation Information and Assessment Meeting, or MIAM for short.
Before making an application to the court all applicants must first attend a MIAM, unless they are exempt.
The MIAM is a first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. If the case is assessed as being suitable then the couple can decide whether they want it to be referred to mediation.
Essentially, the MIAM aims to inform those considering court action about mediation’s existence and assess its suitability for their case.
Mediation meetings can involve the couple and the mediator meeting face to face in the same room. They can also take place as an online meeting. It is even possible for the couple to be in separate rooms, if that is preferred.
Exactly what happens at a mediation meeting will vary from one case to another, and will depend upon the type of issue that needs resolution – an issue relating to arrangements for children or an issue relating to finances and property on separation or divorce.
Generally, the mediator assists the couple in identifying agreed matters and resolving issues that require further discussion and resolution.
The meetings are entirely confidential.
Note that even if the mediator is a lawyer they will not provide legal advice, save to indicate in general whether a proposed solution is likely to be approved by the court.
The mediator will however indicate to the parties when they might need independent advice upon a particular matter. (Note that the parties can take legal advice at any time during the mediation process.)
In the course of the meetings the mediator will seek to ensure that both parties have an equal say, and that any proposed solution is fair to both parties and any children involved.
If the meetings lead to an agreement, the mediator documents it and provides each party with a copy. Note that the agreement is not legally binding, but can be incorporated into a binding court order, if appropriate.
And if the mediation is not entirely successful, the mediator will provide the couple with a written summary of the outstanding matters, and what action the couple should take next.
There are no hard and fast rules as to how long the mediation process will take. The duration depends on the specific case, including the issues and their complexity.
In general, however, the process might typically involve three to five meetings, each lasting between one and two hours.
The meetings will usually be spread over a number of weeks, although more complex cases may take several months.
Note that mediation concerning finances and property may take longer, as the couple will need to make full disclosure of their finances before the mediation can proceed, so that both parties and the mediator know exactly what is involved.
For more information about family mediation, and how we can help, visit our family mediation page.
Whilst divorce lawyers are not marriage counsellors, they are perhaps uniquely qualified to comment upon the causes of marriage breakdown (and the benefits of a marriage preparation course), witnessing thousands of breakdowns over the course of a career.
And if that experience tells us one thing it is that there are many ways in which a marriage can go wrong, often starting with small things, and escalating into something that causes irreparable damage to the marriage.
And the other thing that divorce lawyers can attest to is the pain that can be caused by marriage breakdown, both emotionally and financially.
Anything that can prevent that pain must surely therefore be a good thing. So what are the benefits of a marriage preparation course?
Newly married couples often face challenges due to the unknown, particularly if they haven’t lived together before marriage.
And this is where the benefits of a marriage preparation course come in. A marriage preparation course is designed for couples to attend, aiding them in making optimal preparations for marriage. The courses are often run by the church, but courses are available for couples without a church background.
The course will normally take place over several sessions, and should be run by a trained team.
It is trite to say, but marriage is a huge commitment. It is essential therefore that couples contemplating marriage understand the commitment they are about to enter.
A marriage preparation course can assist the couple in fully understanding and emphasizing the importance of commitment in marriage. Obviously, a marriage entered into without full commitment is a marriage set up to fail.
Otherwise, the contents of a marriage preparation course are likely to cover two particular areas, the first designed to avoid conflict, and the second to know how to deal with conflict when it arises.
Anyone entering into marriage must obviously know the person they are about to marry. But it can be surprising sometimes how little they do know.
A marriage preparation course can help with this.
The course aids couples in recognizing and understanding differences, preventing potential conflicts that may arise from unappreciated distinctions.
And another common area of conflict, as any divorce lawyer can attest, is family. All families are different and the family background of your spouse should be fully understood, to avoid potentially damaging conflict with other family members
Again, a marriage preparation course can help with this.
With the best will in the world, it is almost inevitable that conflict will occur in any marriage. The important thing is to know how to deal with it when it does.
A good marriage preparation course will teach the couple strategies for dealing with conflict.
These may include ensuring proper communication between the couple – issues that are left unaired are only likely to get worse, and couples that don’t properly communicate are not going to be able to resolve conflict.
Obviously, conflicts should be resolved early, before they become more serious. Arming a couple with strategies for resolving conflict can make early resolution more likely.
Obviously, marriage preparation is aimed primarily at ensuring a happy marriage. But ultimately it can help to ensure that the marriage is enduring.
As we indicated above, divorce can take an enormous toll, both emotionally and financially, leaving scars that can last a lifetime.
And an awful lot of people are suffering that toll. About four in ten marriages end in divorce, and in 2021, the latest year for which figures are available, there were 113,505 divorces granted in England and Wales.
Marriage preparation courses may not be for everyone, but attending one could just help prevent your marriage becoming one of those statistics.
Resolution, the association of family justice professionals, has reignited the debate over whether unmarried couples should be given greater rights on relationship breakdown.
Resolution released survey results indicating that a majority of the population now favors increased rights for unmarried couples. The survey showed 59% support for enhanced legal protections for cohabitants, as 74% found current laws unfit for modern society.
In the light of these findings Resolution has repeated its call for a change in the law. The organization’s ‘Vision for Family Justice’ proposes financial remedies for eligible cohabitants in committed relationships upon separation.
So what exactly is the problem facing cohabitees on relationship breakdown, and what is being proposed to address the problem?
Current law treats cohabiting couples’ breakups as if they were unrelated individuals, lacking claims arising from their relationship. As a result, Resolution says, they face financial hardship, inequality and emotional distress.
Current law allows living together for decades, having children, and then walking away without financial responsibility after a relationship breakdown. Resolution argues this situation causes hardship, especially when a mother reduces or gives up working hours to raise a family.
When the Resolution survey asked cohabitees about their concerns in the event of a relationship ending, 35% said they feared having nowhere to live, (if a property is in one partner’s name the other partner has no automatic claim on it in the event of a break up).
Many mistakenly believe long cohabitation amounts to a ‘common law marriage,’ falsely assuming rights similar to married couples.
Contrary to a common misconception, no one suggests providing cohabitants with the same rights as married couples on marriage breakdown. There is no question therefore of the proposals devaluing marriage, as has been suggested in some quarters. But should unmarried couples be given greater rights?
As mentioned above, Resolution is proposing that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial remedies orders if they separate.
The sort of eligibility criteria envisaged would be that the couple had had a child together or had lived together for a specific number of years, as recommended by the Law Commission back in 2007.
The right to apply for financial remedies orders would be automatic unless the couple chooses to ‘opt out’. This, say Resolution, creates lesser risk than leaving couples to ‘opt in’, failure to do so disadvantaging only the financially weaker party.
Financial remedies for cohabitants mirror divorce orders but on a different, more limited basis, as proposed by Resolution.
The Law Commission proposed requiring the applicant to show the other party’s benefit or the applicant’s ongoing economic disadvantage. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage.
Resolution also consider that cohabitants should be able to apply for maintenance in their own right (as opposed to just child maintenance) for a limited period to reflect the economic advantages or disadvantages caused by the relationship which could not be accommodated by other types of orders.
In 2022 cohabiting couples accounted for almost 1 in 5 families in the UK. Resolution advocates for laws that align with modern society, offering solutions for all family structures, including those who are unmarried.
For further information on how we can help, please see our Unmarried Couples pages.
Many couples choose to live together before marriage. They may do so because they haven’t yet decided to marry, or perhaps because their wedding is still some way off. Living together before marriage can of course be a good way to ‘test’ the relationship, before the couple make the commitment of marriage (there is some evidence that suggests that pre-marriage cohabitation reduces the likelihood of a later divorce).
But are there legal implications of cohabitation before marriage, and if so, what are the pros and cons of living together before marriage?
Well, there are implications, and we will look at some of them here, although whether they are ‘pros’ or ‘cons’, we will leave the reader to decide!
When a married couple separate each of them is of course entitled to seek financial support from the other, including a share of the other party’s assets and, possibly, maintenance.
But as the law stands at present there is no such right upon the breakdown of a cohabiting relationship.
Thus if a couple live together with the intention of getting married but the relationship breaks down before the marriage takes place, then they have no right to seek financial support from the other party – the fact that they once intended to get married makes no difference.
There is therefore a risk that one of the parties may suffer financial hardship if the relationship breaks down before the marriage takes place, particularly if they have made a commitment to the relationship, such as giving up their career to have a family.
Accordingly, anyone contemplating cohabiting before marriage should consider entering into a Living Together (or Cohabitation) Agreement, to protect their position should the relationship break down. For more information about Living Together Agreements, see our living together agreements page.
Whilst most people should be aware that living together does not give a couple the same rights as marriage, it is probably less well known that time spent living together before marriage may be taken into account by the divorce court when considering a financial settlement, and may have a bearing upon the settlement.
It might seem counter-intuitive that a couple may live together without then getting married and have no right to financial support at the end of the relationship, but if they do then get married that same period of cohabitation can have a bearing on the divorce settlement. That, however, is how the law operates.
The point is that, when considering what a fair financial settlement on divorce is, a factor that the court is obliged to take into account is the duration of the marriage. If the parties cohabited for a significant period before the marriage then if that period is considered to be part of the ‘duration of the marriage’ then obviously the factor could have greater weight, especially if the marriage itself was quite short.
Whether a period of cohabitation before marriage is included in the duration of the marriage depends upon the nature of the cohabitation. As a judge commented in a case back in 2003:
“…in my judgment where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the premarital cohabitation was on the basis of a trial period to see if there is any basis for later marriage then I would be of the view that it would not be right to include it as part of the “duration of the marriage”.”
In summary, when it comes to the pros and cons of living together before marriage, anyone cohabiting before marriage should be aware that the cohabitation could have a bearing upon any future divorce settlement; although whether in fact it does is a matter upon which they should seek advice.
For information on cohabitation agreements, see our cohabiting and unmarried couples page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.
To contact a member of the team, please visit our Contact Us page.
Anyone involved in a dispute over property, especially if they aren’t married to the (other) owner of the property, may have come across the term ‘TOLATA’. But what does it mean?
As is well known, the law is full of jargon and mysterious terms, seemingly designed to confuse those without a legal education.
But ‘TOLATA’ is nothing more than an acronym, used to avoid the trouble of spelling out what it stands for: the Trusts of Land and Appointment of Trustees Act 1996.
Now, TOLATA contains many complex provisions, but here we will concentrate just on those that are of particular relevance in a family law context, where they are often use to sort out property disputes between unmarried couples.
There are two particular scenarios where couples who cohabit may get into a dispute over property.
The first scenario is relatively simple: the couple jointly own the property in which they live. The relationship breaks down and one party moves out. That party will then want to recover their interest in the property, either by the other party buying their share, or by selling the property and dividing the proceeds.
The second scenario can be more complex. It is where the couple live in a property owned by just one of them, but the other party claims a share in the property. That claim may, for example, be based upon a promise of a share made by the owning party, or upon a contribution made by the non-owning party towards the purchase or improvement of the property. Whatever, when the relationship breaks down the non-owning party may seek to recover their claimed share.
Note that these types of scenario could arise where the parties are married. However, there they would be dealt with as part of a divorce settlement, as the divorce court has the power to adjust ownership of property any way it thinks fit.
But obviously a cohabiting couple have no recourse to a divorce court. They need some other mechanism to sort out their property disputes.
And this is where TOLATA comes in.
Before we go any further, we need to briefly explain just what a ‘trust of land’ is.
Most people believe that the owner of a property will be whoever is stated as the owner on the deeds to the property.
That is true, but the law recognises that someone can have an interest in property without their name appearing on the deeds, for example because of contributions that they have made to the property. In such a situation the true ownership of the property obviously differs from that stated on the deeds.
This is what is referred to as a ‘trust of land’.
The law will refer to the owner(s) stated on the deeds as the owners of the ‘legal estate’, and they are said to hold the property on trust for the true owners, who are said to hold an ‘equitable’, or ‘beneficial’, interest in the property.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice when is comes to child law involving social services, please contact the team.
