Partner Jackie McRae writes on cohabitation in the latest issues of The Scrum magazine.
More people than ever are choosing to live together without getting married. Some see it as a rehearsal for married life: others choose to forego marriage entirely but live together, share their possessions and try to split their costs fairly in exactly the same way a married couple would.
It’s not uncommon therefore for people to assume that if such a relationship ends, they would each would have the same rights to a fair share of the property or savings they have built together as any married couple, particularly if there are children involved. Unfortunately however that is not 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.
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.
Of course, 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.
Increasingly 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’d like to find out more about Wills, pre-nuptial, cohabitation or separation agreements, get in touch with Jackie McRae at firstname.lastname@example.org or call 0131 624 6969.
(Read original article on page 42 of Scrum Magazine)