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04 September 2013

Live-in partners urged to seek legal protection

As more and more couples choose to live together rather than marry or enter a civil partnership, family lawyer Claire Filer supports the need for individuals to have greater legal protection in the event of a break-up.

Figures recently released by the Office for National Statistics show that if current trends continue, by 2016 the majority of children will be born to unmarried parents.

And, as the UK celebrates Parents’ Week in October, Claire says many couples don’t realise that by not taking steps to plan for their future, they risk losing out in the event of a split or, worse still, bereavement.

“The majority of family lawyers believe there needs to be a change in the law, especially where a couple has been living together for a lengthy period of time, have children or where one of them has made a financial sacrifice as a result of the relationship,” she said.

“At present, if one person gives up work, for example to look after a child, and therefore isn’t earning and is unable to save any money, they can be at a real disadvantage and could be left with nothing if the relationship breaks down.

“Whilst we are waiting for a change in the law I would like there to be a greater public awareness of the difference in the legal position for couples who are cohabiting rather than those who are married or in a civil partnership.”

Unlike some countries – including Scotland and Australia – Claire says UK courts have very limited powers when dealing with the assets and income of unmarried couples, and are mainly only able to deal with the division of jointly-owned property and make provision for any children.

“If you are married and divorce, the court has incredibly wide discretionary powers in terms of how it divides up the assets, for example transferring property between spouses, providing for maintenance or ordering a lump sum to be paid.  Essentially judges have the power to do whatever they consider is fair and reasonable in all of the circumstances of the case” she said.

“If you and your partner split up after living together, then the court has no such powers, in effect it is the same as sharing a house with any other person. If the family home is not in joint names then it is pretty hard to establish an interest in it unless you can prove you have contributed capital when it was purchased or show an intention that it was to be jointly owned and this can involve complex litigation.

“You could, for example, have moved into your partner’s home, enjoy a wonderful lifestyle and not have to work and one day be asked to leave and there is little you can do about it. I think most people would be surprised to know that that could happen.”

Where a cohabiting couple has children, Claire says the courts have powers under the Children Act 1989 to order maintenance (which can include an element of a carer's allowance if this is affordable) or other limited financial provision (for example that a property is purchased for the former partner and children to live in until the children are 18), but she warns that there is no discretion to enable the court to make substantive orders in favour of the person with care of the children.
And, whereas in the event of the death of a spouse or civil partner the other has certain automatic inheritance entitlements, where there is no will that is not so for unmarried partners, who could lose out completely because the estate would go to the partner’s nearest relative. 

While there may be children from the partnership, in the event of the couple having no children, then the estate would go to the deceased’s parents, siblings or other relatives. An unmarried partner could therefore be faced with having to make a claim for financial provision from their partner's estate against other surviving relatives, which can be costly and uncertain and cause added stress and grief. 

Although a Law Commission consultation has previously recommended a change in the law, Claire says the Government has made it clear that nothing will change before 2015.

In the meantime, she recommends that all couples who live together should consider having a cohabitation agreement, setting out what happens if, for example, one partner gives up work to look after any children, or what happens to the family home if the relationship ends.

“This is an enforceable contract and, while it can’t provide for everything, it does give the couple the opportunity to put down information about property or possessions they have jointly acquired and how they wish them to be divided in the event of a split,” she concluded.

“We also strongly recommend making a will because, if the worst happens, you want to know that you have provided for your loved ones, whether you are married to them at the time or not.”

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