There are a number of common sense steps you can take if you don’t want to get married but want an approximation of its protections. The importance of at least considering such steps increases significantly if you have or plan to have children. Some issues you might consider are:
-If you are renting a new place together, think about putting both names on the tenancy (see later);
-If you are buying property, then think carefully about how you might want to own your home. You can own it either as ‘joint tenants’ or as ‘tenants in common’. If you buy as joint tenants then you own the house 50/50 and, for example, the share owned by your partner would pass automatically to you on their death. If you own your home as tenants-in-common you can leave a precise share to whoever you choose – you state exactly the nature you share in a declaration of trust. (If you do that, you should make sure you both make a will at the same time, otherwise one of you might end up homeless if the other dies);
– If you are moving in with your partner and they own the property, you need to discuss how contributions will be made. For example, you need to address the issue of how that contribution might be reflected if you start paying the mortgage or for home improvements. Some people regard their contributions as rent and some homeowners are happy to go further and give their partner a share in the home. The correct paperwork should be put in place. If you have agreed to give your partner a share it would be best to draw up a declaration of trust. If you have agreed that you (as non-owner) won’t have a share, or your contributions will be paid back on break-up, then you can record this in an agreement, called a cohabitation agreement (see later).
-Make a will. Without a will all your personal belongings (and the right to organize your affairs) will automatically pass to the nearest relations that the law recognizes. If you haven’t finished your divorce, then the nearest relation is, in fact, your estranged husband or wife.
-Sort out parental responsibility of children.
-Check your pension. Some do not pay survivor’s benefits to unmarried partners. Think about how you can build a separate provision for each party.
-Consider a cohabitation agreement (sometimes called a ‘living together agreement’). These are likely to be taken into account by the court (and therefore mean you avoid going to court because there is no point). The main reason why they wouldn’t be is if you or your partner lied when making them, or if you clearly went away from the agreement at a later date. For example, if you agreed you would never make contributions to the mortgage and then have clearly been paying the mortgage for the last few years. A template agreement is free from theAdvice Now website.
Thanks very much to Punam Denley, a partner at the International Family Law Group LLP for reviewing and to David Hodson, also partner at the International Family Law Group LLP, who reviewed an earlier version which appeared in A Parent’s Guide to the Law by Jon Robins (LawPack , 2009). Stephen Lawson, a litigation partner at Forshaws Davies Ridgway LLP assisted with the section on the CSA.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award