Unmarried Finances

As opposed to married couples, who upon separation have recourse to financial remedy proceedings, enabling them to make numerous claims regarding the matrimonial home, pensions and assets or periodical payments which are considered to be part of the ‘matrimonial pot’.

Regardless of the length or duration of a relationship, unmarried partners do not have the same rights upon separation, and do not have recourse to financial remedy proceedings on separation, which could have a significant impact on the partner who is weaker financially. Instead the interest of a cohabitating partner is determined by the law of trusts, which the claiming partner will have the burden of proving.

Whether you are considering cohabitation, or your relationship with your partner has unfortunately broken down, our highly experienced solicitors at FisherWright Solicitors, will be able to advise you as to how your interests can be best protected.

How can I ensure that my interests are protected?

Cohabitant’s can ensure that their interests are protected by entering a contractual agreement which specifies how the party’s finances, arrangements for children, and any joint property is to be divided in the event of a separation.

Types of Agreements

1. Cohabitation Agreement

If you are currently cohabitating or wish to do so in the near future and wish to secure your assets, you may decide to enter a Cohabitation Agreement. A Cohabitation Agreement is a drafted contract, which essentially outlines the assets owned by each partner whether owned jointly or individually, and specifies the financial agreements throughout the relationship.

What can be included in a Cohabitation Agreement?

Most importantly a cohabitation agreement will stipulate in which proportion assets such as the family home, the contents of the family home and funds in joint bank accounts, are to be distributed should your relationship break down. A cohabitation agreement may also be drafted to include financial provisions for maintenance on the breakdown of a relationship, which unmarried partners may otherwise not have recourse to. You may wish to include provisions in relation to the payment of a mortgage, household bills or even income related provisions in relation to pensions.

Moreover, within a Deed of Separation, the parties could also include provisions for the payment of debts for which parties are liable.

It is highly recommended that you seek legal advice as to the terms of a potential separation to ensure that the agreement can be enforceable. Our dedicated team of solicitors at FisherWright will be able to ensure that the content of the agreement is carefully drafted in a manner which would be enforceable in Court.

Can the Cohabitation agreement include maintenance for children or childcare arrangements?

It may be possible for you to agree and include a provision for Child Maintenance within a Cohabitation Agreement or Deed of Separation. A Cohabitation Agreement will not prevent a former partner making an application for a financial remedy on behalf of Children under Schedule 1 of the Children’s Act 1989 or a claim under the Child Support Act 1991.

You must further keep in mind that even if arrangements for Children, such as contact are agreed within the Cohabitation Agreement, such arrangements will not be entirely enforceable. However, such an agreement may hold significant weight in future Child Arrangement Proceedings.

2. Deed of Separation

Alternatively, if you are contemplating ending a relationship, or have formerly been cohabitating, you may select to enter Deed of Separation, which is a contract specifying how assets, such as property, joint bank accounts, contents of the family home or the payment of a mortgage is to be dealt with following the conclusion of your relationship.

Is it legally binding?

At FisherWright Solicitors we recommend that any separation or cohabitation agreement is drafted by way of a deed to ensure that the terms of the agreement are as binding as possible. As opposed to a simple contractual agreement, Deeds which are in writing, as a deed, and has been validly signed by both parties and delivered will be legally enforceable and therefore will be sufficient in severing your financial ties to your former partner in the event of a separation.

If an agreement has not been entered into by way of a Deed, to ensure that the agreement is binding as possible, or can carry significant weight if later raised in Court, both you and your partner must ensure that the agreement has been entered into ‘freely and voluntarily’ in absence of undue influence. You will also need to ensure that both you and your partner have had comprehensive and independent legal advice and have exchanged comprehensive financial disclosure.

How can I vary an existing Deed of Separation?

If you and your former partner have both signed a Deed of Separation, and you wish to amend a provision, for example in relation to the arrangements for children, or in relation to a property it may be possible for you to vary the existing Deed by way of a further written agreement which has been agreed to and signed by both parties.

For further advice as to whether your existing Deed of Separation can be varied, please contact our dedicated team of solicitors who will be able to provide you with comprehensive advice as to whether this would be possible.

3. Other options following the breakdown of a cohabitating relationship

If you have been cohabitating with your partner and are in dispute as to the ownership of the family home you may be entitled to make a claim under the Trustees of Land and Appointment of Trustees Act 1996. Please visit our pages on TOLATA claims for further information.

If you are a parent and wish to make a claim for a financial remedy, you may be entitled to make a claim under Schedule 1 of the Children Act 1989. Please visit our page on Schedule 1 claims for further information.

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