There is a fundamental misconception that unmarried couples have a legal status of “common law wife/husband” within England & Wales and will be protected legally and financially should they separate. This could not be further from the truth.
An article in The Mail this week highlighted that unmarried couples are 4 times more likely to separate than those who were married or in a civil partnership. Research also indicated that cohabiting couples with children under 16 account for the majority of family breakdowns. Many couples these days cohabit on a long term basis without marrying and under the law as it stands they have very little legal protection should the relationship breakdown.
In financial terms unmarried couples do not have the benefits that come to separating married/civil partnered couples under matrimonial law. In particular, the division of assets from the relationship when agreements can’t be reached between separating couples, are strictly administered though complicated and at times archaic equity and trust law. This often sees one party having to prove through acrimonious and costly court proceedings they have a financial interest in their home which they once shared with their ex even though they have invested their own well earned money into that property over many years.
As for maintenance, cohabitating couples have no financial responsibility to the other and it is surprising how many people assume that because they have had a child with their ex that they themselves will be financially secure for the immediate future. Again, this is a misconception. Financial support may only be available for the benefit of the child concerned and although an ex may be liable to provide maintenance, lump sum payments and even property these are all for the benefit of a child and will stop once the child reaches 18. If real property has formed part of any such agreement this too must be returned to the ex potentially leaving one party homeless.
In an increasingly diverse society in which we live with more and more of us choosing not to marry and instead live our lives with our partners without the formalities of marriage or a civil partnership, consideration must be given to protecting our individual circumstances in the event that those relationships break down.
The law affecting cohabiting couples will have to change but until it does cohabitating couples need to be clearly defining who owns what and who will receive what if the relationship ends. This can easily be dealt with through an appropriate cohabitation agreement before/whilst the couples are living together. Cohabitation agreements can also define future children issues and can include such things as contact, residence, maintenance payments and even parental responsibility matters.
If you need advice on cohabitation or advice regarding a cohabitation agreement please call our Family Team directly on 0113 246 0622.
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