• November 29, 2023
 “Millennial Divorces” – harder than traditional separations?

“Millennial Divorces” – harder than traditional separations?

One of the most prevalent legal myths is that of the “common law” husband or wife. The stark legal reality is that no such concept exists. This is irrespective of how long a couple have lived together, whether they purchased a property together, or whether they have children together.

If a couple are married, or have entered into civil partnership, then the provisions of the Matrimonial Causes Act 1973 will provide an invaluable framework of court orders that govern the financial obligations to each other, and to any children they may have, on divorce or separation.  The family court can make orders affecting the parties’ property, savings and capital wealth, pensions and income with the aim of ensuring that the financial needs of the children and the parties are met though the “sharing” of the matrimonial assets.

In a time when UK marriage rates have been reducing, there have been successive attempts through the years to encourage governments of the day to review the laws relating to the financial arrangements between unmarried cohabitees – the most recent of which were the reforms put forward in the Women and Equalities Committee’s recent report. The government’s position was that concluding the work on the law of marriage and divorce must take precedence over any changes to the law in respect of cohabitants.

So, how do unmarried couples address the financial realities of separating when they have effectively been living as married spouses, but without a marriage certificate. Cohabitees, and family lawyers advising them, fall back on a raft of different statutes to address any financial issues:

Trust of Land and Appointment of Trustees Act 1996: An unmarried partner who is not named as a legal owner of the family home does not have any automatic rights to the property, even if they have lived in the family home for many years. To establish an interest in a property owned by their partner they will need to rely on the law relating to trusts. Such claims are often complex, and with complexity comes legal costs and a lack of certainty of outcome.

If they do jointly own the property the county court can use its powers to decide when the property should be sold. If the property is still needed as a family home, the court may order it shall not be sold until the children are grown up. Unlike married couples, on a sale of the property the court cannot alter the division of sale proceeds to address the financially disadvantaged party’s “need” to rehouse.

Children Act 1989, Schedule 1 claims – There is no legal obligation on an unmarried partner to financially support the other, irrespective of how long they have lived together, or any financially dependency one party may have their “wealthier” partner. While a married spouse can seek financial support through legally binding and enforceable maintenance orders, no such provision exists for unmarried couples.

If they have a child then under the Children Act 1989 the court has power to make a range of orders for the child’s benefit:

  • Maintenance payments to meet the child’s income needs.
  • A capital payment to meet specific expenditure for the benefit of the child.
  • A property settlement order to meet a child’s housing needs (if a child is under 18 years old);
  • Maintenance for a child over 18 where that child is in further education or there are special circumstances.

Any financial provision is for the benefit of the child, and cannot be used or “disguised” to benefit the parent with care. This means that if a parent is ordered to provide a home for a child, the property will revert back to the paying parent once the child is 18 years old or finishes full-time education.

While such proceedings have predominantly been the domain of high net worth individuals, with the increase in cohabiting unmarried parents it may simply be a matter of time before such claims become more prevalent in modest-asset cases where there is a need to provide housing for a child.

The Child Maintenance Service – The government encourages parents (married or unmarried) to make their own arrangements for maintenance. If they cannot agree, the CMS will help with the calculation and collection of maintenance. This removed the majority of child maintenance disputes from the family courts. The family court still retains the power to deal with child maintenance:

  • where a child is aged over 18;
  • where the paying parent lives abroad;
  • where the application relates to educational expenses or expenses connected with a disability or health need
  • where the paying parent’s gross income exceeds £156,000 per year; or
  • where maintenance is sought from a step-parent.

Often the argument against the creation of specific laws to assist cohabitees is simply that if they wish to have the same rights and legal obligations as a married couple then they should marry. There is an understandable wariness over imposing on people who choose to live together a series of legal obligations and principles akin to marriage, when they themselves have chosen not to marry. In the absence of any significant overhaul of the current laws, the key recommendation remains that education and raising public awareness of the distinction between what living together and being married truly entails may be the best protection for any couple. Otherwise, the myth of a the common law spouse will live on.

Simon Donald, partner in the family team at Cripps

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