A recent survey suggests that only one in four couples moving in together plan to marry in the future. Yet another indicates that three in 10 people believe that couples living together have broadly the same rights as married couples. Not so.

In fact there are a number of very significant differences between the rights of a spouse and those of a cohabitant. Usually these only become evident in the event of separation or the death of a spouse or partner, but even whilst living together some key differences include the right to support, and rights in respect of any children born of the relationship:

  • Spouses have the duty to support each other for so long as they are married, whereas cohabitants do not.
  • The parents of children born of a marriage each have automatic parental rights and responsibilities in respect of the children, giving them input into important areas such as where and with whom the child should live, the children's education and any religious instruction. While unmarried mothers also automatically have these rights, unmarried fathers have them only in respect of any child born on or after 4th May 2006 so long as they are named on the birth certificate. For older children, or where the father is not on the birth certificate, these rights can be acquired only by agreement with the mother, or by order of court.

But it's in rights to property and compensation at the end of a relationship where married couples have a distinct advantage. In the event of separation a spouse can typically expect a fair division of what is known as"matrimonial property", along with the possibility of ongoing support payments as required.

Matrimonial property is broadly defined as property acquired by either or both spouses after the marriage but before separation. Once the"pot" has been identified the net value of all of the assets falling within it are shared fairly. The starting point is that fair means equal, but that can be altered depending on the source of funds used to acquire matrimonial property, and whether or not one party has been"economically disadvantaged" by the marriage – for example, a wife who has given up a career to look after any children and the home.

The division of matrimonial property is, in a large number of cases, relatively straightforward. Once the value and split is decided a number of mechanisms can be used to share assets – for example a balancing payment in cash, a shared pension or a transfer of properties into each other's names – such as, the jointly owned family home could be transferred into the name of only one spouse, with the other keeping more of other assets. Within the wide range of options available, an agreement that both can live with can usually be found, and in the rare cases that do require court intervention, the court has broad discretion and a wide range of options.

Contrast that with the confusion and uncertainty which currently faces those parties who have lived together, had a family together and who then decide that their relationship has come to an end:

  • There is no right to support for each other (though of course the rules on child maintenance still apply and child support is treated no differently whether parents are married or not).
  • There is no concept of"relationship" property. Each party simply owns their own assets. The only claim that can be pursued is one based on"economic disadvantage". This involves a complicated balancing exercise: Has one party suffered a disadvantage in the interests of the other? Has that disadvantage been offset by any advantage gained? Has the other party been similarly disadvantaged? Has that disadvantage been offset by an advantage gained? Overall is one party left is a position where a net economic disadvantage needs to be compensated? Confused? It's hard not to be.
  • Even once that complicated exercise has been gone through and a claim established it cannot be met by a property transfer or a share in a pension. Only a cash sum is available by way of compensation.
  • Crucially, any claim must be made within a year of separation, after which time the ability to make any such claim is lost entirely. (The time limit is six months in respect of any claim to be made on death.)

There are lots of other differences, but hopefully the above gives at least a flavour of the uncertainty and difficulties currently facing cohabitants. The important thing is to take advice early – ideally before that first joint home and sofa are bought, but if not then, certainly in the early stages of any separation.

This article freatured in The Scotsman and the SCRUM Magazine

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