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Even Romance Needs A Safety Net

With the latest figures showing the soaring number of cohabiting couple families has reached more than 3 million, it’s never been more important to provide a safety net should romance turn sour.

And the time to plan for that practicality is in the first flush of love when taking care of the future is a caring, sensitive gesture – not when the relationship starts unraveling and acrimony sets in.

Of course everyone hopes that day will never come but there isn’t always a happy-ever-after ending and for those couples who have chosen not to marry, the results of a break-up can be particularly distressing.

According to the Office for National Statistics, cohabiting couple families are the fastest growing family type in the UK. And, although there is no such thing as common law marriage in UK law, 51% of people who took part in a previous British Social Attitudes Survey thought that unmarried couples who live together for some time, probably or definitely had a "common law marriage" giving them the same legal rights as married couples. 

If a couple has shared their possessions and tried to split their costs fairly in exactly the same way a married couple would, they may assume that if the relationship ends they would each have the same rights to a fair share of the property or savings they have built up together as any married couple - particularly if there are children involved. Unfortunately however that is not legally the case.

When a married couple divorce, the starting point is that each is entitled to a fair share of what they have acquired together. In most circumstances that means the matrimonial pot is divided equally. They can come to their own agreement about how they will do this, however the default position in law is that each is entitled to a fair share of their assets (always bearing in mind that debts also need to be taken into account).  If there are disputes the divorce court will ensure that the rights of both spouses are protected and that neither party is left financially disadvantaged.

However if a cohabiting couple splits up they are entitled only to what they own in their own name.  If they cannot agree on how to proceed and one party stands to lose money, or belongings or even their home, they may face an uphill battle to gain what they consider to be their fair share. Certainly there is no default way to divide shared property as there is for married couples.

If separating partners cannot agree they may have to go to court to make their claim. For example, if the property you previously shared is in your partner’s name and you have contributed to the mortgage, you have no automatic entitlement to claim this back. If your partner does not agree to give you a share of the equity, you would have to go to court to evidence that you have been financially disadvantaged because of the relationship. Not only that, you would have to prove that your relationship met the legal criteria of being a cohabiting relationship.

At least in Scotland, it is possible to do this. In other parts of the UK there is no legal redress for a former cohabitee who feels hard done by.  

The Cohabitation Rights bill, which addresses the rights of cohabiting couples, is in the early stages of passing through Parliament and may eventually give some rights to cohabiting couples in England. In the meantime however it is still possible for someone to walk away from a relationship leaving their former partner at a financial disadvantage, irrespective of whether or not they have had children or lived together for decades – more than enough reason to ensure that things are addressed before such a situation arises.

In an even worse scenario, should your partner die without a Will in place and your home is in their sole name, you would not have an automatic claim to it. Assets including property will pass to the next of kin in absence of a Will. This may mean you find yourself living in a property owned by your in-laws who may wish to sell it. At an already terrible time, this could cause even further distress and confusion.

But there are ways to avoid these scenarios. We advise everyone to ensure they have an up-to-date Will in place, and to review it whenever circumstances change - we offer free reviews should you be unsure whether your Will reflects your present wishes.

More and more couples are also considering entering into formal agreements which agree how they would proceed in the event of a break up. Although this may not seem traditionally romantic, we believe that having these open conversations upfront is a great way of taking care of each other’s best interests when you are both in a loving place and can discuss difficult topics calmly and reasonably.

If a relationship does end we would always advise that couples look for an amicable solution before heading to court. Entering into a separation agreement gives both parties some control and certainty over what happens next.  This should be as comprehensive as possible in order to avoid potential future disputes. It should lay out, for example, what happens to your home, how shared assets are divided and contact arrangements for any children.

Whatever stage your relationship is at, it’s always good to get the full picture. Getting advice early on can protect you and your loved ones from further unnecessary pain should the worst happen.

If you would like to find out more about Wills, pre-nuptial, cohabitation or separation agreements, get in touch with Jackie McRae via email or call 0131 624 6969.

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