Family Lawyer Judit Kerese answers key questions about unmarried separation and shares guidance on how separating parents can secure and future-proof their agreements, even without the formal legal framework of a divorce.
“After 16 years of marriage, we’re separating and unsure what our legal rights are. We have two children, aged 7 and 10, and their happiness and stability are our top priority. We both work full-time and we own our home. We’re considering birdnesting to minimise disruption for the kids. The family home is our main asset, so we need to figure out how to make this financially feasible. We’re on good terms, but navigating the practicalities of separation is feeling overwhelming.”
Q: Does not being married affect our legal rights in separation?
A: First of all, I completely understand how overwhelming separation must feel, especially after sharing a life and family for so long. With some guidance we can help to ease the strain on you both.
It’s important to know the law in the England and Wales does not recognise “common law marriages,” even after 16 years of cohabitation. This means that you don’t have the same legal protections a divorcing couple would have when it comes to dividing assets or seeking financial support from each other.
As your main asset is the jointly owned home, we’d need to check whether you own the property as joint tenants, where both owners have equal rights to the whole property and it automatically passes to the surviving owner upon death, or tenants in common, where each owner holds a specific share of the property that can be passed on to beneficiaries of their choice.
If you are joint tenants, you both own the entire property equally, and severing this agreement might be worth considering so you each have a defined share. This also ensures that your portion can be passed on to someone of your choice through your Will, rather than it automatically going to your ex-partner.
This is a lot to process, but knowing where you stand legally is a crucial first step.
Read more about property and separation: Buying a home with my partner: What if we split?
Q: We’ve decided on a 50/50 parenting arrangement after separation. How can we ensure this works well for the children in the long term?
A: It’s commendable that you’ve come together to agree on shared parenting. Having both parents equally involved can help give your children a sense of stability as they adapt.
Once you’ve agreed detailed arrangements for your children between yourselves, we recommend that you draw up a parenting plan to refer back to if needed. This is a written agreement that can outline a range of decisions including:
- How you will rotate childcare.
- Who picks the kids up from school.
- How holidays and birthdays will be managed.
- Decisions about school and health.
- How costs and expenses will be split.
- Parenting approach and boundaries.
- How often you will review the parenting plan.
- Any detail that is important to you and your family.
This plan helps minimise misunderstandings or disputes further down the line and helps to ensure everyone involved knows what to expect.
Q: What are our options if we can’t see eye-to-eye?
Even with the best intentions, disputes can arise and create barriers to amicable agreements.
If you and your ex are not able to resolve issues between yourselves, family mediation can help. With the support of an impartial mediator, you can talk matters through and find solutions collaboratively. If mediation is unsuccessful, you can enlist the help of a Family Lawyer who will negotiate on your behalf and work to forge a plan that meet’s your child’s needs.
Where issuing court proceedings is the only way to find a viable resolution, your lawyer can help you apply for a Child Arrangements Order through the court. This means a judge will decide where the children will live and how much time they spend with each parent, making it a last resort when all other avenues have been exhausted.
It’s never easy, but being proactive about planning can prevent unnecessary distress for children and parents alike.
Q: We want to keep the house and ‘birdnest’ so the children can stay in their home. Is this realistic?
A: Birdnesting, where the children stay in the family home and the parents take turns living there, can provide a sense of stability for the kids when other aspects of their life are changing. It means they can stay in familiar surroundings, which can be incredibly reassuring.
However, this long-term arrangement comes with challenges, especially financially. It’s likely you will would need to maintain three homes: the family home and each of your separate living spaces. This could place a significant financial burden on both of you. Plus, over time, things may change, new relationships, different financial circumstances, or just the toll of maintaining such an arrangement long-term can make it difficult.
A practical solution would be to review the arrangement regularly. If it becomes too challenging, it’s important to have a plan in place to reassess the situation. Maybe you decide together when the children reach a certain age to move towards a more traditional arrangement. Flexibility will be key here.
Q: What about child maintenance or financial support, how does that work?
A: Child maintenance is handled by the Child Maintenance Service (CMS) in most cases, which ensures both parents contribute to the children’s expenses. Since you’ve agreed on 50/50 parenting, maintenance may not be necessary unless one of you earns significantly more than the other. In that case, adjustments could be made to ensure the children’s needs are met. There is a useful government tool to help you calculate child maintenance and ensure your children continue to get the right financial support as they grow up.
Many parents decide to agree that additional payments, such as the cost of extra-curricular activities, are met jointly or in proportion with each parent’s respective income.
It’s worth noting that because you’re not married, there’s no right to spousal maintenance. However, if one parent struggles to meet the children’s basic needs using their own resources and child maintenance payments, they can apply for financial support under Schedule 1 of the Children Act.
Q: As we separate, should we make a legal agreement to protect ourselves and the children?
A: Yes, I would highly recommend drafting a detailed separation agreement. This can outline how you’ll handle day-to-day financial responsibilities, maintenance of the family home, who can and cannot stay at the property, and how decisions about the children will be made. While this type of agreement isn’t strictly legally binding, courts often take it into account if disputes arise later. It also serves as a helpful guide to avoid misunderstandings.
It’s a good idea to include some flexibility and provision for review of the agreement. Life changes – whether it’s finances, living arrangements, or new relationships – so it’s important to have clauses that allow you to review, adjust, and even end, the agreement as needed. For example, you might decide to sell the family home in the future, and having a clear plan for how that will be handled could prevent conflicts when the time comes.
Understanding the broader impact of separation
Separating after such a long time, especially when you share children, is an emotional and complex process. You’re not just navigating the practical aspects of splitting assets and parenting, but also dealing with a huge emotional shift in your family’s life.
Being mindful of the toll this takes on you all means that clear communication and careful planning will be your strongest tools. The goal is to find solutions that work for everyone, allowing your children to feel supported and secure while giving you both the space to move forward with your lives.
Summary of recommendations for separating parents
- Legal advice on home ownership: Determine if you own the house as joint tenants or tenants in common. If it’s joint tenants, consider severing the tenancy to formalise each partner’s share, which will protect you legally in the future.
- Parenting plan: Formalise your 50/50 arrangement with a detailed parenting plan. This will help reduce misunderstandings and create stability for your children.
- Financial feasibility of birdnesting: Regularly assess whether maintaining multiple homes is financially sustainable. Consider creating a separation agreement that allows for periodic reviews of this arrangement.
- Separation agreement: Draft a separation agreement that includes financial responsibilities, maintenance of the family home, and a plan for future changes such as selling the property or new relationships.
- Mediation for disputes: If disagreements arise, mediation can be an effective and less stressful alternative to court. It’s often less adversarial and can help keep focus on the children’s wellbeing. Do consider seeking legal advice during the mediation process.
Separation FAQs
Q: Will a separation agreement protect us if we fall out in the future?
A: While it’s not legally binding, courts often respect separation agreements if they are clear and agreed upon by both parties. Having a structured plan in place can prevent misunderstandings and disputes in the years to come.
Q: What happens if our financial situation changes, and we can’t afford the birdnesting arrangement anymore?
A: It’s important to include a clause in your separation agreement that allows for regular reviews of the birdnesting arrangement. Doing this means that if the situation becomes unaffordable, you can renegotiate or bring the arrangement to an end.
Q: We’re trying to avoid court. What should we do if we can’t agree on something?
A: Mediation is usually a great tool when discussions break down. It’s less confrontational than going to court and can help you resolve disputes in a more collaborative, and cost-effective way. It’s vital to also get independent legal advice to ensure that you understand your rights.
The process of separating is undoubtedly challenging on many fronts but by seeking the right guidance and taking these practical steps, you can help reduce the strain on both you and your children.
It’s about balancing the need for fairness and financial security, sensitively managing the emotional impact of unmarried separation, all while prioritising the needs of your children. By keeping things constructive and focused on reaching workable solutions for the future, you can navigate this transition as smoothly as possible.
Useful links
Cohabitation rights and separation
How to successfully co-parent
Source: Children - stowefamilylaw.co.uk
