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I’m Not Married, I Don’t Need a Family Lawyer…Do I?

Cara Ramprakash, Solicitor on the Family team, discusses the misconceptions of family lawyers and the different scenarios in which they can assist.

Marriage rates are falling in England and Wales, with 1.2 million more 25 – 35 year-olds unmarried in 2021 than in 2011. It is a common belief that family lawyers can only assist individuals who are getting divorced, but the truth is family lawyers can assist even when there ‘is no ring on it’ (Beyoncé).

Cohabitation

It is a common myth that ‘cohabitation is like marriage in all but name.’ It is actually very different and there are very few protections available to cohabiting couples, which can subsequently leave them in a vulnerable situation. Cohabiting couples can enter into a ‘cohabitation agreement’ which records arrangements between them as to their rights and responsibilities in relation to the property. It also records financial arrangements during the cohabitation and provides for future arrangements should the couple separate.

Cohabitation agreements are not just used by couples who are romantically involved with one another. They can be used by individuals who have decided to pool together their finances and purchase a property to live in together. These agreements can also be used where one property is solely owned by one cohabitee or owned by more than one in equal or unequal shares.

The Law Commission has expressed that these agreements will be lawful, provided they are governed by the rules of contract law. This means that the agreement must be freely entered into and there must be no fraud, duress, undue influence, misrepresentation, mistake and/or illegality on other grounds. Sometimes, it may be advisable for parties to exchange full financial disclosure to add to the weight of the agreement.

Although a declaration of trust can be entered into, this will simply record the parties’ respective beneficial interests in the property. It does not take account of other issues that may affect you, particularly if you were to have children or marry in the future, such as:

  1. How the mortgage and other household expenses are to be paid;
  2. How and when the property is to be sold;
  3. Ownership of joint and separate property;
  4. Financial support if cohabitation ends; and
  5. Living and financial arrangements for the parties’ children if cohabitation ends.

All of these can be considered in a cohabitation agreement, and this is why it is advisable to discuss the issue with a family solicitor.  

Advantages:

  1. Entering into such an agreement can clarify who has a financial interest in the home and how they will be paid if one wants to move out or sell the property. This can avoid the cost of litigation about a former cohabitee’s respective beneficial interest in the home that was shared.
  2. The agreement can also detail assets that are owned by one party, enjoyed by both during the period of cohabitation, but retained by the owner should the parties separate. This applies to things such as cars, furniture, art, and other jointly used possessions.
  3. The agreement provides the cohabitees flexibility to organise their financial affairs as they wish. Currently, the law does not allow a cohabitee to make a claim for maintenance or share in a former partner’s assets. Entering such an arrangement can allow one cohabitee to make an arrangement to support their former partner should the relationship breakdown.
  4. The agreement allows the cohabitees to protect their assets. Purchasing a property is an investment and it may be that parents or other family members have gifted, loaned, or invested funds into the property. The agreement can safeguard the family money that has been invested in the property as well as the cohabitees’ investment.  

It is always important to obtain legal advice before entering into such an agreement. This will add to the weight of the agreement and ensuring that it is well drafted reduces the possibility of a dispute at the end of the cohabitation.

Children

Where a couple has children and then separates, there is often a dispute over child arrangements. This can include where the child should live, what time they should spend with the other parent, and other issues, such as what school they should attend. This is the same whether the parents are married or not. 

Having parental responsibility (PR) enables you to make decisions such as determining where the child goes to school, changing the child’s name, and consenting to a child’s medical treatment. Most parents have PR, but it is slightly more complicated for unmarried parents. If an unmarried father is not named on the birth certificate, he does not have PR. If the mother has refused to grant him PR, he will have to make a court application.

Additionally, unmarried parents (as married parents) have a legal obligation to financially support their child, regardless of whether they have PR. If child maintenance payments cannot be agreed, it is advised that legal advice is sought. It may be that the Child Maintenance Service gets involved to assist with the calculation, or that an application to the court is necessary.

You might not have exchanged rings and vows but that doesn’t mean that you don’t need a family lawyer to assist you. As the modern world develops, social views about marriage are changing and the law is beginning to reflect that. It is important to ensure that you are aware of your rights, and it is sensible to get some legal advice early on, say when you are thinking of moving in with something and not just when a relationship comes to an end.

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