A Straightforward Guide to Separation – If You’re Not Married
It’s unpleasant, but you’ve found yourself separating from your partner. The last thing you’d want would be for things to get complicated and your stress levels climbing even higher. So we’ve put together a straightforward guide to separation for unmarried couples who are living together. We’ve highlighted what you need to know to move forward with your life. And because it’s from Watermans, there’s none of that stuffy legal lingo in there to confuse you – and definitely no Latin.
Many people think that if you have been living together for several years, it’s the equivalent of being married and the law treats you on the same basis. But this is not the case – there is no such thing as common law marriage in Scotland. If you have been living with your partner as if you were a married couple, but you haven’t actually got married, your relationship is legally a cohabitation and not a marriage no matter how many years you’ve lived together.
Cohabitants have fewer rights than married couples when the relationship ends. Basically, neither of you has a claim on each other’s assets such as property or pensions, or any responsibility for each other’s debts (although you will still have to pay a joint mortgage until the property is sold or transferred). You also have no right to be paid maintenance for yourself (as opposed to child maintenance). The law does assume you each have a right to equal shares of the contents of your house and any housekeeping money. That’s pretty much it.
However, depending on the circumstances you might have a claim for a lump sum payment from your partner. The rules are complicated and even the courts have struggled with them but broadly speaking, if your partner has gained a financial advantage as a result of the relationship and you have suffered a disadvantage, you might be able to ask the court to order them to make a payment so that the end result is fair.
If you have children under 16 together, and the father is named on the birth certificate, you both have parental rights and responsibilities even though you aren’t married. This means that you will need to agree who the kids will live with and when they will see the other parent – if you can’t sort that out, either of you can ask the court to decide this. Financially speaking, the non-resident parent will have to pay child maintenance. Again, you can agree this between you and if not, ask the CMS to deal with the claim.
Where things often get sticky is when one of you wants to buy the other out of your home, but you can’t agree on a price. You can’t ask the court to make an order about that. We know you don’t have a time machine, but for future reference, it’s a good idea to get a cohabitation agreement if you are buying a property with a partner you’re not married to, especially if you haven’t gone 50/50 on the deposit. In that agreement you can set out how you will agree a transfer or split the proceeds of sale – saving arguments further down the line.
If it’s too late for that, you will need to negotiate a deal and put that into a separation agreement. You may have more options than you think so it’s worth talking through with a solicitor.
If you want to make a financial claim in court after a cohabitation has ended, you must start the action within one year of the date of separation. It can take a while to get to that point so it’s important to get advice as early as possible.
What have we learned?
You have fewer financial rights than spouses when a cohabitation ends and planning ahead with a cohabitation agreement is very, very important.