Avoiding The Legal Pitfalls Facing Unmarried Couples

10 July 2008

The Government’s decision to postpone indefinitely proposals by the Law Commission to give unmarried couples the same rights on separation as their married counterparts will do nothing to solve the already complex legal situation.

Living together is rapidly becoming a more usual life choice than marriage but the reality is that it can make a huge difference to the way the court looks at the finances on separation. The rights of cohabitees aren’t the same as married couples – particularly when it comes to property.

THE FACTS

If you marry and divorce, the court divides your property and income on the basis of what is fair – taking into account the needs of your children, your own needs and resources, and the length of your marriage.

If you’re not married your ex-partner may be obliged to provide your children with a home until they’re older but your own rights are very limited. You could be entitled to the use of your partner’s home while the children live there but the amount of money you receive will be calculated on your contribution to its acquisition rather than on what you need.

Child support or help with children’s education expenses might be forthcoming but you won’t receive maintenance from your partner in your own right. And you won’t get a share of your partner’s pension either – however long your relationship lasted.

SPOT THE DIFFERENCE

As an example, consider the case of a woman in her 40s with three children, living in a four-bedroom house with a mortgage of £100,000. Her partner earns between £70,000 and £80,000 and is a member of a final salary pension scheme.

Both the married and unmarried mother could expect to receive child support based on 25% of the father’s net income. They may be entitled to live in the house and have the mortgage paid until the youngest leaves home.

However, the married mother will then be eligible for a share of the equity which could well be sufficient to buy her a smaller mortgage-free accommodation whatever her financial contribution to the acquisition of the family home. And depending on the ages of the children and her employment history, she could be entitled to maintenance in her own right both during and after the children’s minority – either for the rest of her life or until her share of her husband’s pension is available to her.

The married mother may be eligible for a capital sum to reflect her indirect contribution to the acquisition of other capital assets such as a business built up during the relationship or a foreign investment property bought with money from the husband’s earnings.

In contrast, if the father owned the family home before the relationship began, the unmarried mother could get little or nothing from the proceeds of the sale when the children leave home and would be unlikely to have any kind of claim against the father’s business, other capital assets derived from his earnings or any share of his pension. She would also be unable to make a claim against his income -other than for financial help in relation to the children.

FOOTNOTE

If you and your partner have very different financial resources you need to consider how marriage might affect your position.
 
For further information on legal rights for married and unmarried couples contact Susi Gillespie on 01227 763939. Susi is based at the Chatham office on Monday afternoons.

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