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Married/unmarried – what’s the real difference?

A recent report using data from the Office for National Statistics has shown that cohabiting couples are as likely to have children as married couples. This is the first time that we are seeing the same proportions of married and unmarried couples having children – 38% of both married and unmarried couples are parents. Whilst there remain numerically more married families with children, it is interesting that the percentages are now equal. The report looked at the change between 2001 and 2011 in family make up. Over the same period the number of single parent families has also increased.

The report speaks of changing attitudes to marriage, and that “living together” has lost its stigma. Furthermore, opinion polls have shown that only a quarter of people now believe they should get married before having a child, although more than half think it is important that potential parents should be in a committed relationship before having a child.

Naturally, there has been a certain bias in how these figures have been reported, depending on which paper you read, with some majoring on the greater likelihood of unmarried couples separating than married ones, and bemoaning the changing face of family life in England.

What struck us though is the persistent, erroneous, belief that if you live with someone for a given length of time you become a “common law spouse”, and as such have certain rights to financial support, should you separate. Around one quarter of those surveyed believe the same rights and responsibilities applied to unmarried as to married couples. We’ve blogged about what the Scottish legislature is doing about this before, and you may recall that England is way behind on correcting, or compensating for, these false assumptions.

Let us be clear: since 1753 (in the reign of King George II) the concept of ‘common law spouses’ has not been recognised in English Law. Although child maintenance is theoretically available to and/or payable by most separated parents, there is no coherent body of law to take care of the details when unmarried couples split up.

For couples with children, there are a number of issues to think about, when you separate.

Key amongst these, for fathers, is Parental Responsibility. This is the right to have a say in your child’s education, health and religion, and is accorded without exception to married couples with children. Unmarried fathers of children born before 1 December 2003, or those who do not appear on the birth certificate after that date, may not have automatic Parental Responsibility. This does not mean they cannot seek an order from the court about their children’s upbringing, but may have wider implications in terms of dealing with day-to-day decisions about them.

In terms of financial arrangements, child maintenance is fixed by reference to the statutory formula which applies equally to married and unmarried couples who have children together but do not live as one unit. However, any other financial support for a child requires a specific application to the court. It is possible in some circumstances to ask the court for an order for additional maintenance for a child, or school fees, or for cash or property to be transferred for a child’s benefit whilst they are a minor, but it is important to note that the court applies very different criteria to divorce cases. Former cohabitants have no right of financial support from each other; claims can only be made in relation to support for children. This is likely to mean that even if the child’s carer achieves an order from the court for a housing fund for the child, this will be in the form of a trust that will end when the child grows up.

Let’s put the children aside for a moment. In 2007 the Law Commission published proposals for reforming the law relating to financial remedies for cohabiting couples who separate, but the Government has not yet seen fit to do anything about the recommendations, making it clear they will not be considering reform this parliamentary term. Therefore unmarried couples who separate and want to seek a financial adjustment as a result must find their way through a patchwork of laws instead of the more coherent framework applied to married couples.

The law relating to the financial arrangements on separation for unmarried couples is a complex muddle of trust and property law. A year ago the Supreme Court looked at the issue in the case of Kernott v Jones and decided that a property owned 50/50 on paper by the former couple should in fact be divided 90/10 due to the way the couple concerned had acted in relation to the property since they separated. The reasoning of the judges sitting in the Supreme Court was divided (which just serves to underline the complexity of this area) but there seems to be consensus in the Supreme Court that, where the intentions of the parties with regard to property ownership cannot be determined, the court can legitimately ‘impute’ an intention which did not exist – this effectively amounts to the court making a decision about what might have been reasonable in the circumstances.

Whilst not going as far as looking at the notion of “fairness” which is the key to finance on divorce cases, we are now in a position where a judge can look back over the course of conduct between a former couple, and decide what they retrospectively (and indeed theoretically) intended to do about the shares they own in their property. There’s more information on disputes about property here, if you need it.

We cannot recommend strongly enough drawing up an agreement with your partner when you are about to move in together to set out property ownership, among other things – have a look at our factsheet here . This will help you avoid the future prospect of a judge imposing on you what he or she thinks you intended to do with your own property. If you’d like to talk to us further about this, do give Sue, Adam, Gail or Simon a call on 01223 443333.


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