There has been a lot in the news recently about the lack of legal protection for cohabiting couples if they split up. Unfortunately, many people still believe that cohabiting couples have similar rights to married couples. Whilst change is clearly needed, the current position is that cohabiting couples do not have the same rights as those who are married.
When a marriage breaks down, it is open to either spouse to apply to the Court for a financial order and the Court can make a variety of orders, for example transferring a property into one spouse’s name, ordering that one spouse is to pay maintenance to the other or for a spouse’s pension fund to be shared with the other. The Court has to consider various factors, with the welfare of any child under the age of 18 being the first consideration, before deciding which orders should be made and every case is different.
If a cohabiting couple separate, they cannot apply to the Court for a financial order as they could if they were married. This could leave one party to the relationship at a significant disadvantage. For example:
● If one party moved into the property owned solely by their partner and they later separated, there is no automatic entitlement to make a claim in relation to this property as there would be if they had been married. The party in whose name the property is in could evict the other, effectively leaving them homeless. In contrast, under the Family Law Act 1996 if a property is owned by one party to a marriage, they cannot evict their spouse whilst they remain married without a Court Order authorising this.
● If one party to a marriage was unable to work due to health needs, the Court can order that their spouse pays maintenance to ensure that their ongoing needs are met. There is currently no mechanism by which an ex-partner can be made to pay maintenance. This could leave the party who is unable to work with no income other than state benefits and child maintenance (which is dealt with by the Child Maintenance Service) if there are children.
● If one party to a marriage has a large pension and the other has very little pension having given up work to care for the children, the Court can make an order for the larger pension to be shared between the spouses, to place them on a more equal footing. This is not the case if parties are not married – they would each be left with whatever pension is in their name.
The above examples are a stark reminder of the risks cohabiting couples may face and it is going to be some time before changes are made to current legislation, to make things fairer for those who choose not to marry. If you are thinking of living with someone, or are already living with someone, then it may be appropriate for a cohabitation agreement to be drawn up to record what is to happen in the event of a separation. If would like advice in relation to your current situation, or for a cohabitation agreement to be drawn up, then please contact our family department for further information.
Laura Stocks, Family Law Solicitor