Lawyers are receiving more enquiries from cohabiting couples seeking to end their relationship as reported in The Law Society Gazette. There has been a reported increase in Children Act Applications to preserve the family home for the children.
The recession is to blame apparently. Given that cohabitation is more likely to break down than marriage, I consider that the main difference now is that people are seeking alternative legal solutions. It used to be rare to make a Children Act Application for one party to remain in the home until the children are 18. Now, it appears the standard advice to the resident parent. The previous Government put on hold any change to Cohabitation Law (i.e. there is still no such thing) stating that they would observe the success or otherwise of the system in Scotland.
If you are unmarried, it is possible to make an application to the Court to delay the sale of the home until the youngest child is 18, only then will the non-resident partner get his share of the equity upon sale. Success is dependent upon the individual facts of the case and an unsuccessful application can result in a costs order being made against you.
What is the advice to give to people in the meantime:
- If you are the non earning partner and have children or not, get married.
- If you are the earning partner, with children or not, do not get married. If you do get married have a Pre-Nuptial Agreement.
Some solicitors are suggesting that Civil Partnership Agreements should be extended to heterosexual couples. Why? My understanding of a Civil Partnership Agreement is that it is a marriage in everything but name, given the religious sensitivities, and that this Government may well relabel it as Marriage. So, cohabitees will be able to take advantage of the new law and… get married!