Posted on Dec 20, 2016 in Family Law by Sandra Sutherland
Recent figures released by the Office for National Statistics reveal that divorce rates have plunged to their lowest level in 40 years.
This may be due to an increase in the number of couples opting to cohabit instead of marrying. The Office of National Statistics claims that the cohabiting couple is the fastest growing family type, with such family unit growing by 29.7% between 2004 and 2014. Is cohabitation therefore the new alternative to wedded bliss?
There is a common misconception that couples who live together and opt to avoid marriage and wedding confetti will still be deemed a ‘common law husband or wife’. However, such a concept no longer exists. In 2006 new legislation was introduced in Scotland which gives greater rights to cohabitants (namely a man and woman who live together as if they are husband and wife or members of a same sex couple who live together as if they are civil partners). When determining whether or not a couple is cohabiting the Court will take into account a number of matters, including the length of time the couple have lived together, the nature of their relationship and whether they had any shared finances. It is important to note that there is no fixed period before a couple can be recognised as cohabiting.
It is argued by some that marriage is only a ‘piece of paper’, with cohabitation being the logical alternative for those who do not wish to tie the knot. However, marriage and cohabitation are treated very differently in law, particularly when it comes to finances.
A married couple is entitled to a “fair” share of the matrimonial property, classed as all assets and liabilities (with one or two exceptions) that are acquired by either party throughout the duration of their marriage. In contrast, the cohabiting couple has no automatic right to claim anything. Nonetheless, the law does enable a cohabitant to make a financial claim against their ex-partner. A successful cohabitation claim will be based on the cohabitant demonstrating that they have suffered an economic disadvantage as a result of their separation and their ex-partner has in turn derived an economic advantage from that. However, such a claim must be brought within one year of the date of separation. Cohabitants should therefore seek legal advice as soon as possible in order to avoid missing the claim deadline.
Married couples benefit from legal and prior rights on the death of their spouse. Conversely, although the surviving cohabitant can make a claim on the estate of their deceased partner where there is no Will in place, the Court has the ultimate discretion as to whether or not to make the award. Further, such claim must be brought to the Court within six months of their partner’s death.
Evidently there is a stark contrast between the rights of the divorced and the rights of the cohabitant. So what can a cohabitant do to protect themselves and their assets? The answer can be found in the form of a Cohabitation Agreement. A Cohabitation Agreement is a legal document which is similar to a Prenuptial Agreement. It sets out what will happen in respect of property or financial matters in the event that the cohabiting couple separates or if a cohabitant dies. A Cohabitation Agreement avoids time consuming negotiations and arguments between cohabitants at a time when emotions are running high. By creating a Cohabitation Agreement cohabitants can avoid such issues becoming more complicated and costly in the long term.
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