Weekly Family Law Update November 24, 2021

What are my rights in relation to children and property if I’m not married?

So what rights do you have?

There is a prevalent myth that if you live with someone for long enough you will acquire the same rights as a spouse – the so-called “common law marriage”.

It isn’t true. No matter how long you cohabit with another person you will not acquire the same rights upon separation as you would if you were married.

Children of unmarried couples

Save in one respect, which we will come to in a moment, the law in relation to children is exactly the same, whether the parents are married or in a civil partnership, or not.

The most important thing that separating parents need to do is sort out arrangements as to with whom their children will live and, if the living arrangements are not shared, what contact the children should have with the parent with whom they do not live.

The law in relation to how the court sorts out child arrangements if the parents cannot agree is just the same for unmarried parents as for married parents.

Similarly, the law in relation to child maintenance is just the same. The child maintenance system does not differentiate between married and unmarried parents.

The one respect in which children law differs for unmarried couples is in relation to parental responsibility.

Whereas if the parents of a child are married they both automatically acquire parental responsibility, if they are not married then only the mother automatically acquires it.

The father can acquire parental responsibility by being registered as the father on the child’s birth certificate, with the mother’s agreement, or by obtaining a parental responsibility order from the court.

Save in exceptional circumstances the court will grant a father parental responsibility, so the difference in the law here is more often than not merely a technicality.

Money and property rights

There is no mechanism whereby when a cohabiting couple separate one party can apply to a court for financial provision for themselves from the other, as they could if they were married (or in a civil partnership).

They can’t therefore ask for maintenance, or a share of the other’s property.

Essentially, the property of a cohabiting couple will remain with whoever owned it. Thus, if the couple lived in a house owned by one of them, that party would keep the house after they separate.

It is possible for the non-owning party to make a claim against the property, but only in very limited circumstances, for example where they can prove that they contributed towards the purchase or improvement of the property, and that both parties intended that they should thereby acquire a share in the property.

Of course, the property in which the parties cohabited may be owned by both parties jointly. In this case the parties will retain whatever share they had in the property.

Obviously, this may often mean that the property will have to be sold so that the proceeds can be shared, and if the other party refuses to sell then it is possible to ask the court to order the sale.

The last thing to mention is that where there are children of the relationship then the parent with whom the children live can make a claim for financial provision for the children from the other parent.

On an application for financial provision the court may make various types of order, including a child maintenance order, a lump sum order, and a property settlement order, whereby the other party must provide a home for the child, until the child grows up. Once the child has grown up then the property will normally revert to the ownership of the other party.

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