What Are The Property Rights of Unmarried Couples?

Property Rights of Unmarried Couples
Has your relationship broken down? The property rights of unmarried couples are different in many ways to the rights of married couples and those in civil partnerships. And please remember, there’s no such thing as a common law marriage.

So what are you going to do about:

  • property
  • assets
  • debts
  • your children

Home in joint names

Are you going to sell or is one of you going to buy the other out? But what’s your share? – if you own it in joint names you’re entitled to half of the net sale proceeds. So now’s the time to get some idea of the value from a couple of estate agents.

Declaration of trust

This sets out the shares in which you own the property. But not sure what it means or if it’s valid? Please don’t forget to consult an expert family law solicitor.

Cohabitation agreement

A cohabitation agreement is always a good idea, see my post 6 Things you must include in a cohabitation agreement. If you do have one it may set out the shares in which you intend to own the property. But do you own the property as tenants in common with a declaration of trust?

Tenants in common

See my post Shall I buy a house with my partner for a clear explanation of the difference between owning in joint names and owning as tenants in common. But even if you do own the property as tenants in common, is this backed up by a declaration of trust?

Can’t agree a sale or your respective shares 

You may have to make an application to Court under the Trust of Land and Appointment of Trustees Act. But save yourself time and money with an out of court settlement.  See my recent post How to Avoid Court – Family Mediation, Collaborative Law & Arbitration

Home in sole name

If you live in a property owned by your partner you may have a claim if:

  • you contributed to the purchase price (including making mortgage payments) or to the value of the property in money, or money’s worth. For example did you refurbish the property?
  • or perhaps your partner said you would always have a roof over your head.

You may have an interest in the property under trust law. But beware, these cases can be expensive and complicated. Try an out of Court approach first.

What about a home for the children?

You can make a claim for financial provision for the children including property or a share of property under Schedule 1 of the Children Act. Here again, try an out of Court approach first.

Other assets

It all comes down to ownership. If they’re in joint names, you’re entitled to half. If in sole name, they belong to just one of you.

What about debts?

If they’re in joint names, you’re jointly liable. If the debts are in your sole name, you’re solely liable.

Domestic abuse

You can make an application to the Court under the Family Law Act 1996 to:

  • protect you from domestic abuse and
  • protect your occupation of your home

Child maintenance 

Visit the Child Maintenance Options site and find out the best way to agree a family-based arrangement. You and your partner may be able to make your own arrangement about how much child support to pay. Here’s a link to an online child maintenance calculator

But if you can’t agree you’ll need to go through the Child Maintenance Service (and pay a fee). See my blog What are your child maintenance options.

Who are the children going to live with? Who are the children going to see?

Try to agree between yourselves. If you can’t, try an out of Court approach such as:

See my recent blog How to Avoid Court – Family Mediation, Collaborative Law & Arbitration

Parental responsibility

PR is all the rights and responsibilities of parenthood. For example, to be consulted on matters of education, religion, medical intervention. All mothers have it and unmarried fathers (or fathers not in civil partnerships) if they:

  • jointly register the birth of the child with the mother (from 1 December 2003)
  • enter into a parental responsibility agreement with the mother
  • obtain a parental responsibility order from the Court

Here again, if you can’t agree, an out of Court approach may help.

If your partner has died

You may have a claim under the Inheritance (Provision for Family & Dependants) Act for financial provision from their estate if your partner:

  • didn’t make provision for you in their will
  • didn’t make sufficient provision, or
  • perhaps didn’t make a will at all

What Are The Property Rights of Unmarried Couples?

Contact Family Lawyer Joanne Houston on 01962 217640 for an initial consultation on the question What Are The Property Rights of Unmarried Couples? In this 20 minute session she will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family lawyers. We offer Pay as you go costs. We offer Collaborative law solutions tailored to your family’s needs.

The topics covered in this blog post What Are The Property Rights of Unmarried Couples? are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice.

image for What Are The Property Rights of Unmarried Couples? Couple at Each by Anuvand 68 on Wikimedia  

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Shall I buy a house with my partner?



Shall I buy a house with my partner?

Shall I buy a house with my partner?

You face a big decision. There are many factors to consider but don’t forget to think about how the two of you will own it because this can have very serious implications for couples who aren’t married or in civil partnerships. Did you know there’s a choice between:

  • Joint tenants and
  • Tenants in common?

 Joint tenants/tenants in common – what’s the difference?

I will explain in simple terms but if you are at all puzzled please get in touch. And when it comes to the paperwork for buying the house, make sure your conveyancer goes over the difference between joint tenants and tenants in common and gives you lots of time to think about it before you sign. Wrong decisions have consequences.

 “Joint tenants” explained …

When I tell clients about being joint tenants I usually draw a picture of a house, let’s say in blue, and then draw exactly the same picture of the house over the top of it, let’s say in red.

Then I say to one of them, you own the blue house, and I say to the other, you own the red house. The point being, you both own the whole thing.

 Joint tenants – so what if one of us dies, or we split up?

If one of you dies, the other automatically inherits. And if you split up, it’s equal shares.

 But I’m putting more in, I want a bigger share!

Owning as joint tenants might not be right for you if you put in more money at the start, or will be paying all the mortgage. Tenants in common may be the answer.

 “Tenants in common” explained …

Remember the little house I drew to explain joint tenants? Well in the case of tenants in common imagine a house, one side drawn in blue, the other side in red. One of you owns the blue side, the other owns the red side. A declaration of trust can set out the shares you own it in and what happens if you split up. See more about declarations of trust below.

 Tenants in common – what happens if one of us dies?

If one of you dies, their share goes under the terms of their will. This doesn’t suit everyone because you can’t guarantee who your partner is going to leave their share to. A cohabitation agreement might help (see more below). But owning as tenants in common, and having a declaration of trust, protects the money you invested in the property if you split up.

 Tenants in common – what happens if we split up?

You can own the property in equal or unequal shares, depending on how you contributed to the purchase. Your declaration of trust will set this out. So if you split up you will know what you are entitled to.

Is there anything else you need to do? Well, yes, there is. You need to make a will.

 Make a will …

Why do you need to make a will? Because if you own the property as tenants in common and one of you dies, the survivor doesn’t automatically inherit the house. See my recent blog Do I need a will, here’s one very good reason.

Anything else? Well, yes, a cohabitation agreement might be a good idea.

 Get a cohabitation agreement …

See my blogs 6 reasons why you need a cohabitation agreement  and 6 things you must include in a cohabitation agreement

 “Declaration of trust” explained …

This is a document which sets out your respective interests in the property and what happens if you split up.

 Shall I buy a house with my partner?

Contact Family Lawyer Joanne Houston on 01962 217640 for an initial free of charge consultation on the question Shall I buy a house with my partner? In this 20 minute session she will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family lawyers. We offer Pay as you go costs. We offer Collaborative law solutions tailored to your family’s needs.

The topics covered in this blog post Shall I buy a house with my partner? are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice.

image for Shall I buy a house with my partner? Norsk bokmål: yellow house child drawing by Oyvind Holmstad on Wikimedia 

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Grey Divorce? Making the Best of Life

Retirement is on the horizon or has already arrived. The children are, or will shortly be, independent. Now is the time to make the best of life but couples can find they have grown apart, or that they cannot progress together beyond their roles as parents. Is it time for a ‘Grey Divorce’?

Nowadays there is no stigma attached to divorce, whatever your age. And with dating apps and a burgeoning population of single, older people, there’s less chance of being lonely.

Divorce always involves lots of decisions and emotions, some of which are hard. You can get all the advice in the world but there will still be surprises. So make sure you give a bit of thought to these points.

Punch & Judy or keep it amicable? …

The answer is, of course, to try to keep it amicable. If possible agree the financial aspects by negotiation, collaborative law or mediation

And as for the divorce proceedings, with the Government consulting on ‘no fault’ divorce, things are set to become easier. But for now you need to think whether you want to start proceedings yourself or whether you need a fixed fee quote from an expert family law solicitor.

What are the grounds for your divorce? See my blog, Grounds for Divorce, 5 Things You Need To Know.

Family home or pension …

You might have lived there for decades, perhaps you brought up your children there. But don’t fall into the trap of keeping the family home rather than receiving a realistic share of the pension pot. You could face an old age of financial insecurity whilst your ex is sitting pretty.

Pensions especially final salary policies can be worth a great deal more than the family home. You might plan to realise cash from the family home when you need it in the future but this is likely to represent only a tiny fraction of the capital required to provide you with a pension.

Pensions may be shared, or offset against other assets, or maintenance may be paid to equalise income. See my blog, Pensions on Divorce, What Can You Expect? for answers to the following:

  • How are pensions valued?
  • Do you need an actuary?
  • What is your entitlement to state pension?
  • How to keep your pension out of the divorce
  • What is a pension sharing order?
  • What is offsetting?
  • Can you claim your ex’s state pension?

Investments, savings and inheritances …

Through the course of your life you may have accumulated significant assets. How can you protect them in your divorce? See my blog, Ring Fence and Protect Assets on Divorce.

Grey divorce: is maintenance the answer? …

Special considerations apply in older divorces. Earning capacity might be limited because of age or illness, and this might suggest long term maintenance is required. Or one or both of you may have reached retirement age and pensions may be in payment.

See my blog, Maintenance and Clean Break On Divorce. This explains entitlement to maintenance, and the many different forms it can take.

Your new relationship …

Protect your assets and peace of mind by entering into a cohabitation agreement or a prenuptial agreement. This doesn’t mean you don’t love and trust each other. It simply demonstrates you’re not together for the money.

See my earlier blog, How to Protect Your Assets with a Prenuptial or Postnuptial Agreement

How about the children? …

If you are remarrying or buying a property with a new partner you need to give careful consideration to how your estate is to be distributed in the event of your death. To what extent do you want your new partner to benefit as opposed to your children? Avoiding the issue could leave your loved ones with a dispute or possibly even a court case under the Inheritance (Provision for Family and Dependants) Act.

Get advice from an expert solicitor and make a will. This is also a good opportunity to safeguard your future with a Lasting Power of Attorney.

Grey divorce? Making the best of life …

Contact  Joanne Houston on 01962 217640 for free advice on Grey Divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.

See my blog about how to get the best financial settlement on divorce.

Did you know there are different rules for Short Marriages?


JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

image Old Couple In Love by Ian MacKenzie on Wikimedia Commons

 

 

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Civil Partnerships for Heterosexual Couples : FAQs

Civil Partnerships for Heterosexual Couples WP
Is The Recent Court Case About Civil Partnerships For Heterosexual Couples Important?

Yes, it’s important for you if you:

  • Live together and are worried about your legal rights
  • Want to make a commitment, but marriage feels like an outdated institution

Do Couples Who Live Together Have Rights?

Sadly there’s no such thing as Common Law Marriage. Consequently the rights of cohabitees are limited.

As a result, pensions and property and inheritance are major problems. See my earlier post “6 Things You Need To Know About ‘Common Law’ Marriage”

Why Was A Court Case About Civil Partnerships for Heterosexual Couples Necessary?

Same sex couples can enter into Civil Partnerships but opposite sex couples can’t. This is thanks to the Civil Partnership Act 2004.

A cohabiting couple, Rebecca Steinfeld and Charles Keidanchallenged the law because their local register office refused them a civil partnership. Hence they started a long and expensive Court battle which they won on the 27 June. Here is the Supreme Court Judgment.

Why Did They Fight For Civil Partnerships for Heterosexual Couples?

Rebecca and Charles have lived together for many years and have two children. Consequently they want to make a commitment in the eyes of the law – but they don’t want to marry. Why don’t they want to marry? Because they believe a civil partnership better reflects the equality of their relationship.

Furthermore they consider marriage has historically:

  • Promoted a world view where heterosexuality is the preferred sexual orientation
  • Supported a system of society controlled by a single gender, namely male.

What Did The Supreme Court Have To Say?

The Supreme Court held the Civil Partnership Act 2004 was incompatible with human rights law.

The relevant Articles under the Human Rights Act 1988 are:

Article 8 - Right to respect for family and private life

Article 14 - Prohibition from discrimination

Time To Book Your Civil Partnership?

Not quite yet because the Government needs to change the law. But Rebecca and Charles have delivered a letter to Equalities Minister, Penny Mordaunt MP – so watch this space.

What Can You Do In The Meantime?

Sign this Petition to Penny Mordaunt MP.

Email your MP and ask them to support Tim Loughton’s private members’ bill, entitled Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill 2017-19. Find your MP’s email address by inputting your postcode on the UK Parliament website

Depending on the urgency of your circumstances, you may need to ask a lawyer for advice on:

Civil Partnerships for Heterosexual Couples

Contact Joanne Houston on 01962 217640 for free advice on Civil Partnerships for Heterosexual Couples. In this 20 minute session we will review your situation and how you can achieve your objectives.

JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.

Image: Trash The Dress by Mathias Poujol-Rost on Wikimedia 

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The Myth of Common Law Marriage

common law marriage
Photo by Matthew G on Flickr

    Does ‘Common Law Marriage’ actually exist?

The number of cohabiting couples has doubled over the last twenty years and a popular misconception that seems to lose none of its force is that of ‘common law marriage’. If only such an institution really did exist. I’ve lost count of the number of people I’ve had to break the sad news to that it doesn’t. The fact remains that married couples and civil partners have rights that cohabitees can only dream of.

A recent Parliamentary review, ‘Common Law Marriage and Cohabitation’ (Briefing Paper no. 03372, 9 February 2016) has helpfully looked at all the issues and let’s hope one day Parliament will provide a modicum of protection to cohabitees in England and Wales (cohabitees in Scotland and Northern Ireland already have some rights although not as extensive as those of married couples and civil partners). But, in the meantime, what are the risks?

    The cohabitation minefield

To put it in perspective let’s see how the law protects married couples or civil partners. If they split up, or if one of them dies without making a Will, there is legal machinery in place for dealing with any difficult questions that arise. If you are a cohabitee and your relationship ends or your partner dies you can, literally, find yourself out in the cold.

Why is that? I will give you an example. Imagine a married couple or civil partners living in their shared home. If they divorce all their matrimonial assets, including their shared home, are truly up for grabs. The starting place for division is a fifty/fifty split but certain circumstances are taken into consideration, such as the needs of any children. So the idea is to get a fair outcome regardless of who owns what on paper.

    Cohabitees can end up with nothing

But if cohabitees split up, what happens to their shared home if it is in only one of the cohabitees’ names? The answer is that the other cohabitee has no legal right to a share in the net proceeds. But what if it was always understood to be their joint home, or what if the non-owning cohabitee sunk a lot of money into the purchase of the property or its improvement? Unless they can negotiate a share by, for example, turning to mediation or collaborative law, or they are successful in a complicated and expensive application to the court, the non-owning cohabitee could come away with nothing.

    What happens to the children if cohabitees separate?

 At least the law is fair when it comes to the children of cohabitees. The court procedures and the law are exactly the same when it comes to the emotive and important issues of where the children are going to live and who they are going to see. And of course it’s better to try and reach an agreement yourselves or to try mediation or collaborative law rather than to go to court.

And the Child Maintenance Service (the Child Support Agency) is there to help if the absent parent isn’t paying up, regardless of whether the parents are married or not.

There are special provisions under Schedule 1 of the Children Act for parents to apply to the court for a range of orders for maintenance, lump sum and property orders where there are children to be supported. These provisions are complicated and you would really need to obtain legal advice about them.

    The importance of making a Will

What happens if a cohabitee dies? Hopefully there is a Will, and it provides a fair share of the deceased’s estate to the survivor. But what if there is no Will? If there is no Will the deceased’s estate is divided under the intestacy rules none of which mention a surviving cohabitee. In other words the surviving cohabitee can come away with nothing in which case another complicated and expensive application to the court is required.

    Are you entitled to benefit under your cohabitee’s pension?

Finally, if you live together make sure you know your entitlement to your partner’s pension. A surviving cohabitee might be entitled to benefits under a late partner’s pension scheme but it is not guaranteed.

    Is a Cohabitation Agreement the answer?

It’s always a good idea to have a cohabitation agreement because at the very least this will help you focus on all the issues. But such an agreement isn’t binding in court proceedings and this is particularly the case if there is a change in circumstances such as the arrival of children. So please make sure you regularly review your cohabitation agreement with your solicitor.

    In at nutshell:

There is no such thing as common law marriage

  • Ownership of your shared home can be a legal minefield
  • Update your Wills regularly
  • Children of separating cohabitees are treated almost the same but there are significant differences
  • Would you be entitled to your late partner’s pension?
  • Consider getting a cohabitation agreement and regularly updating it.

Link to ‘Common Law Marriage and Cohabitation’ (Briefing Paper no. 03372, 9 February 2016)

Do you think that there should be more protection for cohabiting couples? We would love to hear from you with your opinion so please leave us a comment.

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JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions.

Visit our website just-family-law.com

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