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21st March 2017
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Separation

Separation affects both married and unmarried couples.

Some married couples choose not to divorce following the breakdown of their marriage. In these circumstances they can still regulate their financial affairs in the same way as if they divorced. To do so they must apply to the Court for a Judicial Separation. Then, apart from the stage of Decree Absolute, the procedure is identical to that of divorce.

For unmarried heterosexual couples the case is different. There is no cohabitation law similar to divorce law. In law there is no such thing as a common law wife or husband. These are just widely used words to explain the situation of living together but not actually being legally married.

Enlightened family lawyers, such as members of Resolution, have been campaigning for several years now for a change in the law to give some protection on separation, particularly for the vulnerable. These tend to be women who have little or no earned income of their own, often as a result of having the couple’s children, but men can also be vulnerable.

A parent left caring for the children can, of course, claim child maintenance through the Child Maintenance Service. It may also be possible to compel the other parent to purchase a home for the children to live in until they reach the age of majority and to pay additional child maintenance.

Separating unmarried heterosexual adults cannot claim maintenance for themselves, nor do they have any automatic claim against any property, capital or other assets (such as pensions) belonging to the other partner. If you move into your partner’s house without becoming a joint owner, you will not automatically obtain a share in that house but you might have a claim against a house in the others’ sole name if you made a financial contribution directly towards the property or were made a promise of shared ownership.

The process is complicated and to some extent can be helped by the existence of a pre-living-together agreement but in any event specialist legal advice is essential.

If you are unmarried and considering separation, or if you can’t see yourself divorcing but want to lead separate lives, we would be pleased to explore the options open to you.

Diane Genders
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