I will admit for the purposes of this blog that I am nearing thirty – the age when your friends start to get married and have children. I have three invitations for weddings this year already and I am excited to hear couples nearest and dearest to me recite the time honoured marriage vows, “for better, for worse; for richer, for poorer; in sickness and in health… with my body I honour you; all that I am I give to you and all that I have I share with you”. These vows make the couple’s commitment clear, not just to one another but also the world. This commitment is subsequently enshrined by law under the Matrimonial Causes Act 1973 with matrimonial law governing any subsequent separation.
But what if you are one of the 12.5 million couples in England and Wales who choose to set your life up with someone − without getting married? Without the vows, what are the legal implications?
Property and Finances
The court cannot adjust agreed shares in property, make a maintenance or lump sum order (unless relating to children) or share pensions.
Disputes between the unmarried couples relate almost exclusively to determining agreed shares in a property. The court cannot adjust shares that are agreed and there is no element of discretion. ‘Agreed’ in this context means:
- What do the deeds to the property say?
- Where one party says there is some other agreement between them which ‘trumps’ the deeds;
‘Agreement’ means not just written or spoken agreements that can be proven, but also agreements that can be inferred from behaviour.
A cohabitation agreement can offer additional protection by considering how a shared property would be divided if an unmarried relationship were to end. Although the courts are not obligated to enforce such an agreement, UK based relationship charity One Plus One considers that an agreement provides “a good starting point”.
The number of children living in a cohabiting couple family has more than doubled since 1996.
If parents are married to each other at the time of the birth or conception, either parent can register the birth on their own and details of both parents will be recorded. The law assumes that the mother’s husband is her child’s father. However, if the parents are not married to one another, generally the father’s details may be recorded only if both parents (or the court) acknowledge the father’s paternity. Without this registration, an unmarried father will not have Parental Responsibility.
Parental Responsibility is best outlined with reference to the Children Act 1989, which states that Parental Responsibility is concerned with; ‘bringing the child up, caring for him and making decisions about him, but does not affect the relationship of parent and child for other purposes. Thus, whether or not a parent has parental responsibility for a child does not affect any obligations towards the child, such as a statutory duty to maintain him’.
If a child was born before 1 December 2003 to an unmarried father, regardless of whether he is named as the father on the child’s birth certificate, that father will need to acquire Parental Responsibility through the Court or by agreement with the Mother. A child’s birth can be re-registered by agreement if the unmarried father is not on the birth certificate.
The law in England and Wales does not discriminate against unmarried victims of domestic violence and Part VI of the Family Law Act 1996 (which provides for emergency injunctions and occupation orders) can be used as a means of protection by any home-sharing (former or current) or married victim.
At present, if one of a cohabiting couple were to die, irrespective of the length of the relationship or there being children within the family, the surviving cohabitant has no automatic right under intestacy rules to inherit any part of their partner’s estate. A claim against the estate can be made under an Act of Parliament called the Inheritance (Provision for Family and Dependents) Act 1975 if there is no or inadequate provision by will or on intestacy. However, a cohabitant is not treated in exactly the same way as a spouse.
Fore more guidance on State Security, Taxation and Immigration read the full House of Commons Library paper: http://researchbriefings.files.parliament.uk/documents/SN03372/SN03372.pdf