Separating Partner Maintenance: Perfect Storm Gathers

Year Published: 2010

The Government should consider an urgent change in maintenance legislation to prevent a collapse of the financial support system for separating unmarried couples.

Family lawyers at law firm SAS Daniels LLP says marriage rates are plummeting as more people choose to simply cohabit – which means that the rights of co-habitees in the UK are more and more important.

“What is co-habiting bliss today could turn into a nightmare worse than divorce if separation trends continue,” said the Family team.

“Divorce is often an unpleasant experience, but at least the spouse has rights and claims – co-habitees have none except to be able to claim child maintenance: the answer may have to be legislation introducing rights for unmarried couples.

“The near-perfect maintenance storm is gathering: fewer marriages, more co-habitees having children – and splitting up sooner.

“There’s half as many ‘traditional’ families as 50 years ago, 12 years is considered to be a long marriage, seven years considered to be average, and the divorce rate is increasing – it is estimated that around 40% of all marriages in 2010 are likely to end in divorce compared to around a third in 1970 – and more children are being born to unmarried parents.

“However, co-habiting couples are four times as likely to separate – children or not – and there’s more of them. Either more people should get married, or legislation relevant to the separation of married couples will have to be extended to cover co-habitees.

“There is no right for maintenance for a co-habiting partner – even if he or she can’t work due to young children or poor health. Married partners could claim spousal maintenance even if only married for a very short period – whereas you could live together for 50 years and have no right to claim maintenance.

“Neither is there any right to claim pensions, or indeed anything at all unless they can prove that they have contributed to property – and that is a very expensive and uncertain court application.

“Co-habitees are also not automatically next of kin – unless there is a will, a partner would get nothing automatically. He or she would have to sue the deceased’s estate.

“So, with the increase in cohabitation and the increase in children born to unmarried parents, there are more and more children who could suffer. If their carer gets nothing from the other parent and cannot work, then they will have to claim benefits; even if the other parent is very wealthy, his or her only legal duty is to pay child maintenance – nothing to the partner, whatsoever.

“Currently, the only option for co-habiting couples is a co-habitation agreement which is an enforceable contract. If couples do not wish to marry, then to protect themselves I would recommend that they prepare one of these agreements which could provide some form of financial security if the relationship breaks down. If the contract is prepared properly, then both parties can benefit in the long run.”

For further information please contact a member of our Private Client team 01625 442100.

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