We weren’t married. What am I entitled to?

Over the last say three decades it has become much more common for couples to live together without getting married – or just waiting a much longer time to do so. There are many reasons for this, one is financial – weddings can be expensive. Also, many couples want to experience living together before taking the plunge. Another reason is the changing views of society – couples living together is far more acceptable than it used to be. That being the case as family lawyers we are often asked what the legal position is for a couple where they weren’t married but are separating. If you find yourself in that position, this blog is for you.

The starting point is that there is no such thing as “common law marriage” – nor is there anything such as “common law man and wife.” These are all unhelpful and essentially meaningless phrases that have no legal standing in England and Wales.

When a couple divorces, the financial claims that arise after the marriage breaks down arise from a piece of legislation called the Matrimonial Causes Act 1973. The law that applies to a couple who have lived together rather than married is not as simple, and instead we potentially have to look at numerous pieces of legislation and case law for guidance on what the legal position might be. There are campaigns to try to change and simplify this, not least given the harsh impact the law can have on children, but any change is likely to be some way off, and certainly for the time being the law in this area can be tricky to navigate.

Most people are concerned in the first instance what will happen to their home, and property claims are where we usually start. It is helpful to start by trying to establish who has legal ownership of the home, which if you are uncertain, means a search at the Land Registry. If you are concerned the legal ownership does not accurately reflect what you and your partner agreed, consideration should be given to what the beneficial interests in the property are. In those circumstances it can be helpful to consider who contributed financially to what, whether that be in terms of the mortgage, an extension, or otherwise. The legislation we would need to take into consideration in those circumstances would be the Trusts of Land and Appointment of Trustees Act 1996. If court proceedings are brought under this legislation, they are often referred to by lawyers as “TOLATA” claims.

If you and your partner had children together, it is worth consulting the Child Maintenance website to check what if any child maintenance shall arise once you are living separately from your partner. Further, if your partner owns property, whether that be the former family home or otherwise, it is also worth considering whether any claim can be brought under Schedule 1 of the Children Act 1989, which can be a route to claim financial provision for children where a couple were not married. A “Schedule 1” claim often goes hand in hand with a “TOLATA” claim.

For the individual who has stayed home to look after the children and not worked, the advice that there is no legal claim that can be made following cohabitation for either maintenance to meet income needs, or in respect of pensions, can be devastating news.

As stated above, there are campaigns for change in the law to see those who live together and have children to be afforded greater legal protection, but for now the law can be messy, unclear, and some say unfair. Here at Franklins we can however advise in clear and practical terms about what your legal position is following separation from your partner. Equally we can also help you and your partner put together a legally binding agreement which will provide a clear framework as to what should happen if you separate, so that you can avoid an expensive legal battle should the worst happen.

We offer an initial fixed fee appointment for a cost of £195 at which we can advise on your particular circumstances, and help you understand your legal position, whether that be at the start or the end of your relationship.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk