The law in this area is complicated and it is therefore very important that you seek specialist advice at an early stage to find out what rights you do have legally.
Common Law Marriage
Common law marriage is a myth. In England and Wales there is no such thing as "common law husband or wife". Irrespective of the length of time you and your partner have lived together then unless you have children your legal rights as to finances are governed by trust and property law, rather than family law.
Capital & Property
The general rule is that if capital or property is in your sole name, the other party does not have any interest in it – although they may be able to claim a beneficial interest in the property – please see below.
If capital, such as savings is in a joint account then both parties have an entitlement to it. The split may be dependent on how much either party contributed.
Where your property is owned in joint names then the starting point is that you have an interest in that property. That interest may be governed by a legal document which you signed at the time of purchase or subsequently. There are different methods of owning a property for example as "joint tenants" or "tenants in common" or possibly under some trust based arrangement.
If you live in a property which is solely in your partner's name, you may still be able to establish an interest if you have contributed towards the purchase price of the property or you can show that you have made other contributions.
If you are the party who owns the property then it is equally important to seek advice in order to protect your interest.
The law in this area is complicated, especially if your contributions are not quite as clear cut as contributing to the purchase of the property, it is therefore very important that you seek specialist advice at an early stage to find out what rights you do have legally.
Can I formalise any agreement?
You and your ex-partner could enter into a separation agreement, setting out how your joint assets are to be divided.
A separation agreement is a contract between you both. Should either party breach any term of the separation agreement, any dispute would have to be resolved in the Civil Courts and not Family Courts, should you be unable to resolve the dispute yourselves or with the use of solicitors.
Unmarried couples will be unable to obtain any legally binding order from the Court in respect of the division of assets.
However, if issues regarding property arise, you may be able to obtain an order from the Court – but it will be in respect of property only. For this, proceedings are initiated under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). However, the Court only have the power to make an order for sale, not to transfer the property into the sole name of one party. This can be a very costly process and therefore should always be the last resort.
What about where we have children?
If you and your partner have children together then you may be able to establish a legal claim under Schedule 1 of the Children Act 1989 for a property to be purchased or preserved for your children. The claim is made on behalf of your child/children.
It may be possible to seek an order that you are able to either stay in your property or gain assistance from your former partner to assist you to re-house. Any assistance from your former partner would then revert back to them a future point in time or pass directly to your child. If you are concerned that your former partner may make a claim then again it is important for you to seek early legal advice.
You will also need to consider the contact arrangements for you children following separation. For more information, please click here.
Maintenance for children is governed by the Child Maintenance Service. There is a formula for working out the maintenance based upon your gross income. There are occasions where top up orders can be made and the Court does have jurisdiction in certain circumstances to make additional awards.
Where you are not married, there is no jurisdiction in English law for income related payments to be paid to former partners. This differs to married couples, as if you are married then you do have income related claims unless or until they are dismissed by a Court.
Whatever the issues it is important to take proper advice from one of your expert family law solicitors.
For further information, or to arrange an appointment please contact us on 01274 861096 (Liversedge) or 01423 637272 (Harrogate) or email firstname.lastname@example.org. Please note that we offer a free half an hour consultation.
Mediation helps you make decisions without spending months locked into costly litigation proceedings.
Financial & Property
For any couple faced with separation, finances will be a difficult and hotly contested area of discussion.
Cohabitation & Separation Agreements
Ownership of the home after a separation can be a difficult issue but the outcome can be different if you are cohabiting.
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