‘I Do’ vs ‘I Don’t’ : the pitfalls for unmarried couples when their relationship breaks down

There is a common misconception that when their relationship breaks down, partners who have chosen to live together rather than marry, will have the same rights on separation.. Very often partners who have lived together will refer to themselves as a ‘common law spouse’. This however is not a recognised legal status and the law differs quite significantly between co-habitees and spouses.

Married couples who separate are often able to bring a claim against all of each other’s assets to include property. The size of that claim will vary depending on a number of factors including the length of the marriage, whether there are any dependent children and the available assets to meet each other’s respective needs. The Courts will consider what is fair and equitable in all of the circumstances.

The outcome for a couple living together can be very different, despite the fact that, often, it is only a marriage certificate which separates the individual circumstance.

Unmarried couples do not have any automatic or guaranteed rights to any share of the other financial resources on separation. This is regardless of whether there is a long standing relationship or whether there are any children of the family. A starting position when examining how assets should be split between unmarried couples is what was expressed between them. By way of example, if the deeds of the property which has been the family home are in the sole name of one partner, there is a presumption that upon separation, that partner will retain the entire interest in the property. The same will apply in relation to savings held in an account in the name of one partner and any debts, regardless of whether they were accrued for the benefit of the family.

The Courts do have powers to make Orders to change that position although those powers are enshrined in complex legislation which does not account for an approach based on fairness – a stark contrast to the law surrounding the breakdown of a marriage.

It is also the case that a widowed partner in a long standing relationship will not automatically inherit from their partner if their partner did not make a Will.

It is felt amongst the profession that this is an area of law which is in great need of reform. For many years people have chosen to live together rather than marry and the principles surrounding the breakdown of those long standing relationships are archaic and not reflective of modern day society.

Some recent case law gives a flavour of the Courts recognising this need for change. In February of this year, there was a case decided in the Supreme Court which received a lot of media attention. It was held by the Court in that case, that a surviving cohabitee can still claim against their partner’s public service pension. This was despite the fact that the deceased in this case had failed to give his partner’s details in a nomination form. This is a clear example of the Court recognising the length of the parties’ relationship and putting their minds to what is fair and equitable in all the circumstances.

It must be noted however that in this case, the parties had not separated. They were very much together in a long standing, living together relationship. The law as it stands would not allow a partner to make a claim against her cohabitee’s pension pot in circumstances where the relationship merely breaks down. This continues to result in an extremely unfair situation in some circumstances. One partner could have sacrificed furthering a career to care for and raise the children of the family, whilst the other was able to achieve career goals, increase their income significantly and build a favourable pension pot for retirement. In these circumstances, for an unmarried couple, pension sharing would not be available.

The law in relation to those choosing to live together continues to be insufficient in relation to protecting the rights of the parties upon separation. It is for this reason that it is essential that parties who are intending on living together or even have been living together are open and honest about what they would each expect to happen if the relationship did breakdown. The agreement reached should be recorded in a Co-habitation agreement so that there is a forum to enforce that agreement if there was ever a dispute.

For further advice and assistance on this matter, please contact our Family Law Specialist, Mrs Nia Thomas on 01267 239194 for a 30 minute free consultation.