Is it better to be married or remain unmarried to protect your financial interests?

No one enters a relationship contemplating a separation or divorce , but sadly this can become a reality . We can get pre- nuptial and post nuptial agreements , but these are not 100% guaranteed as they are not legally binding under U.K. law and if you have children the court essentially considers the welfare of the children above anything else .

If however , your not married can you avoid the standard 50:50 division by keeping the house in your own name ? Isn’t this safer ?

Marriage

Well known artist Beyonce’s music seeks to givesome insight when relationships breakdown and the emotional roller coaster it sets you on.

‘Single Ladies (Put a ring on it)” – released in 2008(13 years ago) shows when it was the dream to be married.

Back then (2008) it was true to say you had more legal and financial rights as a married couple upon death and divorce as a women particularly and especisllt if you had children , compared to a  co-habiting couple . Often women are not on the title deeds; they move into a man’s house and that’s when uncertainty as to finances happen especially if women take the demotion or time off to have children , but where the mens careers continue to thrive . This isn’t at all the same for all relationships , but it is still often a predicament that happens due to biology .

No Ring

If you are a co-habiting couple you must rely on the Trustee of Land and Trustees Act 1996 , of which there is no sign towards this legislation being updated at present. So if your family and you fall into the co-habiting category (unmarried) and your relationship breaks down then sadly you are then left to agree if not pursue your partner for your share of ownership to your assets.

The house will fall to who is the registered owner or how its divided in the land registry or trust deed. If that’s not you, you will need to evidence what you believe rightfully belongs to you , by way of what you spent , bills paid and off-set against your partners expenses too.  This can include anything from contributing to an installation of a bathroom, renovations works to the property, agreeing to look after someone forever. A financial accounting excise will be undertaken? This means it’s open to interpretation; evidence and having the funds to go to battle if necessary .

Being married would secure more rights under the Matrimonial Causes Act; the Civil Partnership Act or The Marriage (Same Sex Couples) Act 2013. The usual starting point here is 50:50 unless there is children and then it starts at that point

Unmarried – old Trust law steps in

The law that covers the division of assets regarding unmarried couples is Trust Law – it is complex and not straight forward.  The Trust of Land and Trustees Act 1996 sets out the Court’s powers – however, these powers are limited and whilst it has power to make an order for sale of the property; make a declaration of the parties beneficial interest and make  compensatory orders, the jurisdiction of the Court on the face of it is to declare what the parties intended.  To do this it will analyse the evidence and listen to statements.

As such post and pre-civil partnership agreements (for unmarried) and pre or post-nuptial (for marriedcouples) is always considered helpful if you truly want to record your intentions and have ultimate security and comfort (which must be reasonable). You both must have independent advice and understand they are not binding on court , especially if you have children , but they are persuasive.

Beyonce cover “Irreplaceable” Lyrics ‘To the left, to the left, everything you own in the box to the left “- This is a very emotional opening to a person who has been broken by their  emotions following a relationship breakdown.  It captures what as family solicitors we experience , when people feel when a relationship is on its way out, being cheated on, having feelings of hurt, anger, loneliness, is your life going to be better with them or without them? If only we could compartmentalise things so easily .

However, whilst Beyonce was singing about emotional breakdown how does this feed into our UK legal system.  Many people do not like to hear this, but there is no provision within the Family Procedure Rules that an adult’s emotions should be taken into account in relation to the break down of a couples finances.  A partner could have numerous affairs, even be caught with another lover, but unfortunately whilst some conduct ,misconduct for example lying to the court / fraud, will impact , most will not. This means affairs , money on lovers often will not allow more assets to be afforded to the other party.  The Family law system fundamentally revolves itself around children of the family and the needs of the children and where there are no children it seeks to look at what the parties financial needs are.

If you were to pack your former partner’s wife/husband’s belongings up without their consent you may come under some criticism, especially if this was done in front of young children. So sadly ,no matter how hurt the parties feel conduct needs to be managed carefully when it comes lawful behaviour during the breakdown/divorce, because a lot of the behaviours encountered can be seen a “misconduct”

Dealing with finance during breakdown can be complex.  Your family assets will be different to the next family so trying to compare what happened to a friend may not always relate to you.

Should it happen to you it is always advisable to get legal advice at the outset to know what your family will be faced with and the many ways to deal with it.