Why unmarried couples face more risk when they break up
According to family lawyer and matrimonial consultant Sheela Mackintosh-Stewart, couples in the UK are cripplingly uninformed of the risks they are taking by choosing to not bind their relationship legally.
You’ve been with your partner for eight years, invested in a house together and created a family. You considered getting married, but it felt like an extravagant financial commitment and why comply with an archaic legal ritual anyway?
Today your partner announces they're leaving you for a work colleague. After years together, you are sure you can reach an amicable arrangement with your ex about maintenance, child support and the house. Your income took a knock after the children and you're expecting to receive half of everything.
Except legally, you are not entitled to any of this. You were entirely unaware. You're devastated.
Society is changing but the law lags behind. Cohabitees are the fastest-growing family type in Britain, with 3.3 million couples living together without being married or civil-partnered.
The large majority of these couples are under the misguided impression that a “common law spouse”—which has not existed in England and Wales since 1753—somehow guarantees the same protections and financial and legal rights as married couples. It does not! In reality, there’s no cohesive definitive law available to cohabiting couples and the legal system treats them as separate individuals.
So, in the event of a relationship breakdown, a cohabitee has no claim to a partner’s property, no automatic rights to spousal maintenance and there is no equal division of assets. Any financial claims are governed by a hotpoch of different laws—property, family, trust and business laws.
This means that your partner can simply walk away without accepting any legal responsibility towards you. If you have dedicated your life to your family, given up your job and been in a long-term relationship without any pensions or savings, you stand to receive practically nothing from your partner if you split up.
The only exception is under Schedule 1 of the 1989 Children’s Act, which gives you a right to child support, a carer’s allowance and a house to raise your children (if you have children together) but the house will pass back to him/her once the children leave home.
For cohabitee widowers, the situation is equally bleak, with no automatic rights to your late loved one’s pot of money or property without a written Will specifically bequesting these. Widowers do not qualify for widowed parent’s allowance or bereavement benefits and have no legal rights to manage their partner’s personal or financial affairs when they become unwell. Unlike married couples, there is no entitlement to a deceased spouse’ pension and you’ll have to pay 40 per cent inheritance tax.
There is a Cohabitation Rights Bill currently passing through Parliament that will provide additional protections for unmarried partners if it becomes law, but it is in the early stages and is unlikely to be resolved in the foreseeable. However, Denise Brewster, an unmarried partner did recently win a landmark case allowing her the right to claim her late partner’s occupational pension for herself and their four children, which could open the floodgates to more such cases happening and a call to a faster change in the law.
So, what can you do to protect yourself in the meantime?
1. Put in place legal safeguards to avoid uncertainty and costly litigation if you split up
If you purchase a joint property, then register and protect your interest on the property’s title deeds and have a written agreement setting out your share of the property or your percentage ownership.
Do not rely on oral promises, particularly if you have made regular payments or contributions towards your shared home.
2. Enter into a Cohabitation Agreement that is legally enforceable with the assistance of a lawyer
Clearly lay out in the agreement what will be divided and shared in the event of a breakup.
How will the money, assets, property, household content and finances be divided? What child maintenance and payments will be paid? By whom and how much? Will the property be sold? Where will both parties live?
3. Hold on to pensions and your job for as long as possible
It’s uinadvisableto stop paying into a pension or to give up work as cohabitees have no legal financial claims for maintenance.
If you do, then ask your working partner to continue to pay into your pension pot and keep saving.
4. Make a Will
This will give financial security and clarifity on inheritance when either of you pass away.
5. Or, just get married
You stand to be almost £200,000 better off financially after 50 years of marriage even after the cost of a wedding because married couples enjoy tax breaks when they are together, split up or die.
Statistically too, a marriage is five times less likely to end in a breakdown and is linked with much lower levels of infidelity.
By Sheela Mackintosh-Stewart, a family lawyer and relationship guru