Just Living Together
If either one or both parties have decided that there is no going back and it is determined to end the relationship there are obviously consequences. These are different pending upon whether you are married or just living together.
If you are living together but not married how do you refer to your “other half?” Do you call them your cohabitee or partner or do you use some other term?
The question is relevant because not only is there no accepted word in England for your “other half” but there is no legal concept of “cohabiting”.
Many people think that they are a “common law husband” or “common law wife”. This is a term that last had any validity in 1753. The only marriages that are recognised at law are those which are recognised by virtue of the Marriage Act, of that year.
If you married and subsequently separated the parties rights with regard to each other and to any children are governed by the Matrimonial Causes Act 1973 (as amended).
If you lived together and separated there is no one law or set of rules which governs this situation. There are a number of separate issues which are all dealt with, with different sets of rules. Relevant issues are:-
- Maintenance for partners
- Maintenance for children
- Home ownership
- Inheritance
- Financial provision for children
- children
Maintenance for partners Where partners live together without being married and subsequently separate then neither party has any obligation to provide maintenance for the other.
Maintenance for children The party with care of the child will be entitled to maintenance in respect of that child. This is either by agreement or in default of agreement through the CSA.
Most assessments are under the “new” rules which have been simplified so that there is a flat rate (subject to certain exceptions) of a proportion of the paying parties net income – 15% for one child – 20% for two – 25% for three children or more. An accurate calculation of your liability can be made with the CSA calculator at www.csa.gov.uk.
Allowances are made for other dependant children and other particular circumstances.
Home ownership As a rule your legal rights are governed by the declaration in the title deeds of the property. If it was bought in the sole name of one party then the other party has no rights at all unless they can prove either that they have financially contributed towards the property or that there was an implied agreement, for example, that this was going to be “our home”.
The position has theoretically been clarified by the House of Lords in Stack v. Dowden which does lay out certain guidelines as to how the property is to be divided in these circumstances. If the parties cannot agree, then a Judge will make a decision. There is a very wide discretion and consequently a great deal of uncertainty. Court proceedings are expensive.
If the property is bought in joint names then, unless there are compelling reasons which indicate otherwise, each party is entitled to an equal share. It may be specified in the deeds that the shares are held unequally.
In the absence of exceptional circumstances what it says on the deeds will apply. It is essential, therefore, that when a property is being remortgaged you take proper advice as to the consequences of the remortgage and the consequences of transferring a property into joint names.
Inheritance If you have not made a Will then property passes according to the rules of intestacy. A cohabitee does not feature in these rules and, therefore, the only protection is by making a claim under the Inheritance (Provision for Family & Dependants) Act 1975. This is only available if it can be shown:-
- that the claiming party has been maintained wholly or partly by the deceased immediately before the death of the deceased or;
- for a period of two years and immediately before the date when the deceased died they were living: (a) in the same household as the deceased (b) if the husband or wife of the deceased
Financial provision for children Maintenance is dealt with as mentioned above Under Schedule 1 of the Children Act 1999 the court has powers to make transfers of capital either in the form of property or lump sums for the benefit of any children. The factors that the court consider do not include the applicant or claimants contribution because it is an award for the child. Any award which has been limited for only so long as they are children or dependants. It would not be common for an order to be made in these circumstances where the means of the parties are modest. In “big money” cases substantial provision has been made for the carer of the children.
