For those of you that have recently watched Love Island All Stars, you will know that the islanders are feeling the love and some are making things ‘official’.
But once the cameras stop rolling and the couples swap the villa for their own homes, what are the legal consequences of living together?
If relationships progress outside of the villa, where do the islanders stand if their relationship breaks down?
When swapping sunbathing in the South African sun, for Marigolds in their new homes, the misconception of being entitled to property, pensions or maintenance can be risky especially for those getting brand deals or raising their professional profiles. When cohabitating relationships break down, there is no automatic right to claim against property, pensions, or spousal maintenance as in a marriage and common law marriage does not exist in England and Wales.
Parties who are in a cohabiting relationship should enter into a cohabitation agreement as they provide peace of mind both during the relationship and in the event of the relationship ending. The agreement can clarify the parties’ expectations about their financial arrangements during the relationship, such as who is to pay the utility bills and who is to pay the mortgage.
The agreement can provide clarity in the event the relationship breaks down offering both parties greater transparency and security. Each person in the relationship may bring different things into the relationship for instance, one may put more money into the purchase of a property and the other might purchase the furniture, the cohabitation agreement can set out who will get what if the relationship turns sour and detail practicalities for dealing with the separation.
Turning the villa, into a London Penthouse – who is entitled to the property?
This depends on how the property is held namely, whose name is on the title and whether they hold the property as Joint Tenants or Tenants in Common.
If a property is purchased as Joint Tenants, the parties have equal ownership of the property and therefore would be entitled to 50% of the property once sold. Furthermore, if one owner was to die their share in the property would pass to the surviving owner, even if the party who has died had a Will in place leaving their estate elsewhere.
If the property is owned as Tenants in Common, shares in the property will be distinct and therefore if one party dies, their share of the property passes in accordance with their Will or the intestacy rules if they do not have a Will. As Tenants in Common, you can own different shares of the property such as one party owning 70% and the other 30%. This is a really important option to consider if one party is contributing more than the other at the time of purchase. However, consideration should also be given to what the other person is bringing to the relationship in the alternative to their contribution to the purchase price of the property and whether that is to be brought into account in the division of the property.
Unlike divorcing spouses, cohabiting partners cannot rely on matrimonial law and as such, the court’s powers are narrower. The focus is on what the parties’ rights are according to the law of property.
Are cohabitation agreements enforceable?
A cohabitation agreement is legally enforceable as long as the agreement has been correctly drafted and executed as this makes it a legally binding contract. The agreement must have been entered into voluntarily and both parties should have sought independent legal advice.
Romance and real talk
Whilst the Islanders’ love may flourish under the South African sunset, couples should have real conversations about what were to happen if their relationship breaks down and provide one another with clarity on who gets what. It shouldn’t be seen as a negative but instead, both parties to the relationship protecting their wealth should things not work out.
With the Islanders getting brand deals, their fame growing and the winners being £50,000 richer, they may become more appealing to date in the real world. Even if their South African relationship breaks down, it would be wise for them to have a cohabitation agreement with a new partner to provide clarity to each of them within their relationship.
What if the couple has children?
When children are born into the relationship, the law treats parents the same whether they are married or not. Provided the father is named on the birth certificate, both parents have parental responsibility and so share rights and responsibilities for their children. In terms of where the children will live and who they will spend time with, this should be in line with the children’s best interests and generally, if the parents have come to an agreement that works the Court will not need to get involved. If however, the parents cannot come to an agreement, one parent can apply to the Court for a decision on where the children should live and how often they should spend time with the other parent.
Can an unmarried parent request financial provision from their ex for the benefit of the children?
The parent who the children live with will be able to apply to the Child Maintenance Service for regular Child Maintenance payments which are usually paid monthly by the other parent. Child Maintenance is calculated by considering the paying parent’s income and the number of overnight stays. If the paying parent’s gross income is over £156,000 per annum, the receiving parent can apply under Schedule 1 of Children Act 1989 for ‘top-up’ payments to assist them with meeting the child’s needs. The Court will then exercise their discretion to determine whether these payments should be awarded. All payments are for the children; this is not an alternative to spousal maintenance.
Schedule 1 is also available to an unmarried parent to meet capital needs for the children for example, housing provision. If this is ordered by the Court, the property will be used by the parent that the children live with usually until the child attains 18 years of age or ceases full time tertiary education. At this point the property will then revert to the paying parent.
Other expenses can also be claimed by the parent with whom the children live such as payments for the purchase of furniture, a car to transport the children, school fees and other educational related expenses. The claiming parent may also be able to claim for childcare (such as a nanny) for the children.
For any Schedule 1 claim to be successful, the parent against whom the claim is made must have sufficient assets to provide the required support and meet their own needs. The starting point is not that assets are shared as happens on divorce but a clear need for the benefit of the children has to be established.
And finally
Having watched love blossom on our TV screens, it’s important to consider your own relationships and what would happen in the event that your relationship breaks down – whether you are a reality star or not!
If you have any questions or would like some further advice regarding a cohabitation agreement, or Schedule 1 claims please contact a member of our Family Team who will be happy to assist you.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
