Despite the increasing number of couples in long-term relationships who are unmarried (often with children), misconceptions about the different positions of married and unmarried couples when they separate still exist.
Whether there are children in the family or not, the law treats married couples very differently on separation to those who are married. This is regardless of how long the relationship has lasted or how an unmarried couple has organised their finances whilst they are together. Consequently, those in unmarried relationships can find themselves at a significant disadvantage on separation. This is particularly true where one partner has assumed responsibility for meeting the financial needs of the family and the other’s contribution to the relationship is measurable in other ways like in the investment of time (and the sacrifice of career progression) to bring up children.
What are the main differences?
Probably the most significant difference is the couple’s right to financial support from each other following separation. On marriage, there is an obligation to divide property by legally-prescribed methods on separation that focus on meeting the needs of both spouses and any children, and on achieving fairness in the division of the family’s resources for the future. To some extent, it does not matter who owns what at the point of separation and, bar some limited exceptions, both spouses’ financial resources, whether previously shared or not, form part of the ‘pot’ that can be called upon to meet everyone’s needs. Specialist courts exist specifically to oversee and approve that division.
Unmarried or ‘cohabiting couples’, on the other hand, have no right to financial support from each other regardless of the length of their relationship or how they have chosen to organise their finances whilst they’ve been together. Claims for financial provision to meet the needs of the children can be made through the Child Maintenance Service and by making a statutory claim in the civil courts to meet specific needs like housing, medical treatment and educational needs. The latter claims can sometimes result in the transfer of property from the ownership of one parent to another to meet those needs. However, as the claims are specific to the children’s needs, the transfer of property is usually only temporary (until the children grow up).
Any other rights to claim an entitlement to a share in the other’s property (such as a family home or business) only exists to the extent that it is possible to assert that both parties have behaved in a way that confers an entitlement on the non-owning partner to claim a share in it. Such claims are often contentious, costly and fraught with uncertainty.
How to plan for future separation
Many of the pitfalls often experienced by unmarried couples can be avoided with a bit of careful thought and planning during the relationship and by formalising aspects of your status with a partner by drawing up a legal agreement called a cohabitation contract or agreement.
Such an agreement usually sets out how you own and share your property and lets you document how you will split it should the relationship break down. It can also cover how you will support your children, over and above any legal requirements to maintain them, as well as how you would deal with bank accounts, debts, and joint purchases such as a car. The agreement can also be used to set out how you and your partner will manage your day-to-day finances while you live together, such as how much each contributes to rent or mortgage and bills etc.
To be legally enforceable, a cohabitation agreement must be signed by both parties, when both have had legal advice independently of each other. However, the time and money required to put a written agreement in place is usually dwarfed by the costs couples tend to incur trying to resolve these issues post-separation. It is usually well worth the investment to avoid uncertainties that can lead to disputes both during a relationship and post-separation.
Specialist family lawyers at The Family Law Company can help you with any of the issues covered by this blog. Please get in touch and our ‘unmarried’ team would be delighted to help.