Whilst some people still use the term ‘common law spouse’ to describe a relationship where a couple cohabit, the reality is that this term is very misleading and those who cohabit have fewer rights than those who marry.
Two couples, who have been in a relationship for over twenty years, go on to separate. In both cases the legal title to the house is held in the name of party A. In the case of the first couple, the court orders that the equity in the property should be divided equally between the two parties. In the case of the second couple, the court orders that party B has no interest in the property.
Why are the outcomes so different?
The key distinction between the two cases is that the first couple are married, whereas the second couple are not.
On separation, a different set of rules apply depending on whether the couple are married or not, and the ethos at the centre of the two regimes is very different. The separation of married couples is governed by the Family Procedure Rules 2010 and the Matrimonial Causes Act 1973, which is concerned about making sure that the outcome is fair. Conversely, the separation of unmarried couples is overseen by the Civil Procedure Rules 1998 and the Trust of Land and Appointment of Trustees Act 1996 which looks at strict property rights, where a key issue will be not what is fair but rather an examination of the parties’ intentions. The difference in the two approaches can result in vastly different outcomes, as we have seen in the example above.
In addition to dealing with interests in property, following the breakdown of a marriage the court is equipped with an array of powers to ensure that neither party is prejudiced by the separation. This includes the payment of maintenance from one party to the other, and the ability to split a pension belonging to one party so that the other party can also benefit. Unfortunately, there is no obligation on those who are not married to support their partner, or to share any pension benefits.
It is important to obtain specialist legal advice if you are contemplating living together or a separation, and whether you are married or unmarried. This can assist you in making the right decisions from an early stage, and also ensure that your position is protected so you are not ‘on the back foot’.
Here at the Family Law Company you will have access to Exeter and Plymouth lawyers who specialise in helping unmarried families, so if you are in any doubt about your legal position please do give us a call.
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