Amie Calder, Family Solicitor at WSP Solicitors has successfully qualified as a Resolution Accredited Specialist for Children and Domestic Violence work. Founded in 1982, Resolution is a community of family...
‘To marry or not to marry’; relationship rights
Do you know your relationship rights
The breakdown of a relationship is difficult and emotionally traumatic. The last thing that a person needs is the worry about their relationship rights or that they will not be able to financially support themselves and their children.
Recent statistics, according to Resolution (an organisation of family solicitors and professionals who promote a non-confrontational approach to resolving family matters) has shown that there has been a rise in co-habiting couples and that this is the fastest growing family type in the UK.
In the context of financial relief there is stark difference between the relief available to a separated spouse and that of a separated co-habitant. Many co-habitants in the UK believe that if they have lived together for a long time that they become common law man and wife. This unfortunately is not true. There is no such thing in this country.
When the court is looking at distributing finances after divorce the court puts all of the husband’s and wife’s assets into a hypothetical pot. The starting point is that all of the assets are then divided between the husband and wife on a 50/50 basis. It does not matter whether the asset is jointly owned or owned solely by the husband or wife. At the outset, all assets are deemed to be matrimonial in nature.
The court can divide the assets between the husband and wife in unequal shares if it considers it fair to do so. There are lots of factors that the court will take into account in deciding how the assets should be divided which includes the needs of the parties and any dependent children. The other factors that the court will consider are set out in the Matrimonial Causes Act1973 (MCA) and case law.
When it comes to co-habitants the position is very different. Joint assets will be split 50:50. But, if one person owns an asset and it is in their sole name, then that asset is not considered to be an asset of the relationship. When they separate, the non-owning cohabitant is not entitled to any share of those assets. Each cohabitant is entitled to retain any asset held in their own name.
There is some limited recourse for cohabitants who have contributed to a property or relied on promises made by their partner. If, for example, a non-owning cohabitant has directly financially contributed towards the family home, then they can try to establish an equitable interest in that property and make a claim under the Trusts of Land and Appointments of Trustees Act 1996 (TOLATA). This is technically a civil and not a family claim. This means it is no different to a sibling or friend making a claim on someone’s property. The court’s discretion in deciding whether such a claim exists is far more restrictive than under the MCA. The claim is based on proving the existence of a trust or equitable interest where no legal interest exists. Establishing the existence of a trust is not limited to direct financial contributions and can be implied by discussions or conduct. The difficulty here is proof and evidencing this in some way. Most people do not have important conversations with their partner by email or letter, so there is often little proof.
If there are dependent children from the cohabitation, the primary carer for those children could also try to make a claim for financial relief on behalf of the children under the Children Act 1973 (Schedule 1). This is a family claim and the courts discretion to award financial relief is wider than that under a TOLATA claim. The relief is however for the children and not the cohabitant.
Sadly, this all means that there is a big imbalance between the financial rights of, and relief available to, married and non-married couples which can often result in financial inequality and financial struggles after separation.
As a solicitor who sees this all the time, it is not surprising that Resolution are calling for action to change this. They hope to allow more fairness and a more secure financial future for this fast growing group of people and their children.
You can also follow the Family team on Twitter @wspfamily
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