Taking the spleen out of splitting up

Unmarried couples have few legal rights when they break up - but they soon may have more

Plans to give unmarried couples improved rights on the breakdown of their relationship highlight how worried the Government is about changes in society that leave many women and their children in deep financial trouble once a partnership breaks down. But for many who plan to co-own property, any change to the law (which is not expected to happen quickly) will not necessarily help them.

Many centuries ago, marriage was not formal. The Church or State was not involved. But after the Marriage Act of 1753, common-law spouses no longer had the same rights as those legally married. One effect is that when a home is bought, a couple must always be clear about their intentions as to who owns how much of the property.

When an unmarried couple own property in joint names, the presumption is that the home is equally owned. The House of Lords’ decision in May in Stack v Dowden gave guidance about the exceptional circumstances in which a different intention could result in an unequal division at the end of the relationship. The background to the purchase, the nature of the relationship and the contributions made, before and during ownership, are of particular importance.

However, there is no scope for “fairness” nor are the discretionary remedies of the divorce court available. So in 1983, Valerie Burns (who took her partner’s name, kept the family home and raised their children) received nothing after living with her partner for 19 years. Contrast this with divorce since the House of Lords’ landmark decision in White v White in 2000, when a number of cases have made it clear that there is to be no discrimination between the breadwinner and the home-maker and child-carer.

Change has been long overdue. The 2001 Census for England and Wales recorded just over two million cohabiting couples with nearly 1.28 million dependent children between them.

For these couples, whose relationships are marked by intimacy and exclusivity, distinct from divorcing couples, the Law Commission’s proposals could enable separated partners to claim a share of property, capital payments and a share of the other’s pension with the aim of reaching a clean-break settlement, and if there are children, payments for childcare costs. Eligibility will be determined by the length of the relationship or if there are children. Applicants must make a “qualifying contribution” to the relationship giving rise to “certain enduring consequences at the point of separation”.

The reforming legislation is not timetabled and leading politicians are undecided about how far marriage and unmarried relationships are to be supported and protected.

What is clear is that any new law will not protect other co-owning or cohabiting relationships, which include blood relatives (elderly siblings perhaps) or “caring” relationships.

The sharp increase in house prices in recent years has intensified the need to co-own, and also made it financially worthwhile to go to law to decide ownership at the end of the relationship, as the fight is over relatively large sums of money. Few people can afford to buy a first property easily by themselves, since earnings have not kept pace with house price increases. Many parents pay the deposit or guarantee a mortgage and will co-own the home to protect themselves.

At the other end of the economic cycle, in an attempt to avoid the impact of inheritance tax, assets pass on death to adult children, who then club together to house the surviving spouse out of the estate.

In times of lower house prices, higher mortgage capacity or even negative equity, settlement of any dispute was relatively straightforward. When legal costs might be £30,000 to take a case to a fully contested final hearing, without significant equity it was far better to settle the case. But today, people are far more inclined to argue about each percentage point in the property, which might mean several thousand pounds.

One way to regulate the outcome yourself is a cohabitation agreement – essentially a prenuptial agreement for those who are unmarried (including parents buying with an adult child or siblings housing an elderly parent). You can provide for different contributions, payment of mortgages or outgoings or other specific factors. They are almost always binding if everyone involved understands the agreement and has independent legal advice on it.

Public reaction to the proposals for cohabitation will indicate whether the law is ahead of society in promoting change or behind it in catching up with what is already happening.

Hazel Wright is a partner and Graeme Fraser a solicitor in the specialist family law team in the private client group at Cumberland Ellis LLP.