Q: As Valentine’s Day approaches and the hearts and minds of the masses are drawn to all things pink and heart shaped I thought it appropriate to dedicate my column to the laws of live in love, a topic which seems to cause much confusion and consternation amongst those of you that are cohabiting but are not or do not intend to marry. I hope my column covers the various questions you have emailed me about, from your rights when living in your partner’s property and you split up, to your entitlement upon their death.

A: Love and marriage, love and marriage, goes together like a horse and carriage, love and marriage, love and marriage, its an institute you can’t disparage
Frank Sinatra

Years ago, to a different generation, love and marriage really did go together like a horse and carriage. It was expected and encouraged, a respected institution. However since the early Seventies we have seen a decline in marriage rates in both the UK and the Western world that indicate that marriage is becoming increasingly less important to many individuals who whilst in love, choose to cohabit and never to formalise their relationship. This has led to the widely used expression of ‘common law spouse’ to describe cohabiting couples, an expression I must say always makes me cringe, partially because I am romantic and traditional and partially because the connotations of the term are that you have many rights in law if you live together and break up which is entirely true. If you live together and break up it is each man (and woman) for themselves. Scary but true.

So how can you try and protect yourself if you have decided that your relationship is not one which will conclude in marriage or if you are living together long term but are unsure if it will actually end in marriage but may just simply end?

I believe there are three essential things you should do when you live together in a long term relationship and I deal with each as a separate subject below.

GET YOUR HOUSE IN ORDER
If you are living together in a rented property then it is fairly simple. Make sure you take on a joint tenancy that reflects who is paying what. If you are splitting the rent 50/50 then you simply need to sign up to a joint tenancy, if you are paying different amounts then you need to ensure the tenancy agreement reflects this. I would also suggest having a legally binding agreement with your partner so that in the event you break up before the tenancy has terminated you know who is staying in the property and therefore liable for the remainder of the rent and if the departing party is to make any contribution towards the outstanding rent. Otherwise you could find yourself in a situation where one of you has the cost, stress and aggravation of paying double rent. At least if you pre-empt this by deciding these matters when you are in love and on good terms with one another then it can make the break up all the cleaner and less draining both financially and emotionally.

If you decide to buy a house together in joint names (either as beneficial joint tenants or tenants in common) then by law any proceeds should be split accordingly upon separation and either party can force a sale of the property in order to realise their share. Again you could pre-empt this by entering into a legally binding agreement that in the event of separation one partner buys the other partner out of their share preventing a forced sale.

In my opinion the real problems arise when one partner owns the property the couple are cohabiting in and there is no agreement in place as to the contributing partner’s rights in relation to any monies they have contributed to either to repayment of the mortgage or home repairs/improvements. It could be that the courts find that the contributing non owner partner is entitled to a share of the property but there is no certainty and will be dependent upon the specific facts of the case. Plus it is a long messy process which can become vitriolic. The last thing you need when you have just broken up. Again it makes sense to pre-empt this by agreeing in a legally binding document what the contributing non partner should receive in return for their financial contribution to the non marital home.

Love never dies a natural death
Anais Nin

Anais Nin may be right but all the love in the world cannot prevent the Grim Reaper taking away your loved one if their time is up. I know I said I was romantic but I am not naive and neither should you be. The fact of the matter is however long you have been together and however much you love each other, if you are not married and die without a will, you die intestate meaning your estate automatically passes to your family. The only asset which will have any kind of protection will be your home and that is only if you jointly owned it as benefical joint tenants. So everything else goes to your next of kin who may not know that you intended to financially benefit your partner in the event of your death. Dying intestate means your wishes can’t be carried out and can result in all kinds of claims being made against your estate making the entire grieving process for both your partner and family even more painful not to mention expensive, as action is taken to sort out, what really ought to have been arranged before the event.

Where there is a will, there is a way. Not for your loved one to return to you but at least for you to receive what they wished to bequeath to you, be it money, a home or a precious heirloom. So get that will sorted!

MUM’S THE WORD
So you are happily cohabiting and become broody and you decide that creating the pitter patter of tiny feet is actually a bigger commitment to each other than marriage. Time passes and a little bundle of joy arrives in your lives. Everything is wonderful and you play happy families and then…you split up. If you are married the custodial and financial arrangements will be dealt with in any divorce settlement, just as the McCartney’s are doing in court this week (though one hopes with slightly less press attention unless one or either of you are public figures).

However if you are unmarried and you do not register the child’s birth in both parents names (i.e. the father being named on the birth register too) then only the mother has automatic rights to the child. That means upon separation that the mother will automatically have the right to care for the child as she sees fit. The father will find it hard to have any influence if he is not also named on the birth register. It is possible for the father to apply to court for various orders (in relation to where the child is living, access etc) but this is all at the court’s discretion and is often subject to mediation and dispute resolution with the mother.

An option for unmarried, cohabiting parents is to enter into a legally binding agreement which sets out the custodial rights and financial obligations of both parties in such circumstances. This may be the last thing you want to think of when you are stocking up on Pampers and setting up the nursery but it may help prevent plenty of heartache in time to come in the event you do split up. At least the arrangements you set out in the agreement were mutually agreed at a time when you were in harmony with each other as both parents and partners and your biggest concern was the welfare of your child and this concern hasn’t yet been chipped away by the animosity of your break up.

I hope the above provides some guidance to those who choose to cohabit instead of marrying. To end this month’s column on a lighter note and to acknowledge the forthcoming Valentine’s Day I leave you with some quotes close to my heart about love…Happy Valentine’s Day…

Life without love is like a tree without blossom and fruit
Kahlil Gibran

Love all, trust few, do wrong to none
William Shakespeare

Being deeply loved by someone gives you strength, while loving someone deeply gives you courage
Lao Tzu

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