The concept of family has changed beyond all recognition in the space of a generation. The idea of a nuclear family unit comprising of a married mum and dad with 2.4 children seems as outdated now as the idea of a world without mobile phones or the internet.
Nowadays, families are whatever we want them to be: parents of the same gender or different genders; civil-partnership, married or living together; children born by a variety of methods and with different genetic heritages. All are regarded the same by society – but not by the law.
The strains on modern family life – whatever shape the family takes, are enormous. However the journey to family begins, it is a sad consequence of those increased stresses within our modern world that separation, dissolution of civil-partnership and divorce are all on the increase.
One of the most common misconceptions I face in my legal practice day-to-day is when dealing with adults, who have lived together outside the legal framework of a civil-partnership or marriage but assume on separation that their financial arrangements will be dealt with in the same manner as their divorcing counterparts. There is a misconception that simply by living together for a period of time you acquire “rights” against your partner upon separation.
This is simply not true. There is no such thing in law as the common law wife.
The act of getting married or entering into a civil-partnership brings with it a legal financial responsibility towards your partner. On separation, the economically stronger partner can be compelled by the court to make financial provision for the economically weaker partner. This may take the form of providing property, cash, maintenance or sharing in pension provision. The court has sweeping powers to impose financial arrangements that the court deems to be fair with one of the court’s considerations being the welfare of any children. The court has the power to redistribute assets, regardless of whose name assets are in, their provenance, or the reasons why the relationship failed.
The same is not true following the separation of a couple who have lived together without taking the legal step of entering into civil-partnership or marriage.
Cohabitees acquire no financial responsibility towards each other, no matter how long their relationship exists. On separation, the property will be shared according to ownership, no maintenance payments are due and pension provision cannot be shared. There is an exception to this where there are children of the family. Child maintenance is always payable between separated parents, regardless of whether or not they were in a legal relationship. Furthermore, a parent can be compelled to settle property for the benefit of children during their minority, meaning for example that one parent can be compelled to provide the finances needed to purchase a property for the children to live in with their other parent. However, that property will be held on trust and will revert back to the paying parent once the children achieve a majority, rendering their former partner homeless.
If you are looking to start family life without being married or in a civil-partnership make sure you understand the legal vulnerabilities of your situation and address them.
The harshness of the law relating to cohabitees can be mitigated by careful planning at a time when relationships are good. Cohabitation Agreements, Trust Deeds and Wills, all regularly reviewed, can be used to ensure financial arrangements on separation match the expectations of all involved and provide adequately and fairly for both the adults and their children.