In January of this year, a heterosexual couple lost their court case in which they argued that opposite-sex couples are being subjected to discrimination as, unlike same-sex couples, they do not have the choice to enter into a civil partnership instead of marriage.
At present, same sex couples who wish to formalise their relationship and thereby obtain a legal status entitling them to financial protection and benefits, can choose between civil partnership or marriage. Heterosexual couples need to marry in order to obtain that same financial protection.
The court found that the law as to civil partnerships was not discriminatory as the couple could marry if they wanted to achieve the rights, benefits and protections that flow from a formal recognition of their relationship.
Precarious position of unmarried couples
The case once again highlights the precarious position of unmarried couples compared to married couples (or same sex couples in a civil partnership).
Unmarried couples should understand that if their relationship breaks down:
- They cannot claim maintenance from the other person, other than maintenance for the support of the children. Compare this to married couples where, on divorce, a spouse can claim maintenance for his or herself as well as maintenance for the children.
- There is no right to remain in the family home or have a share of its value if the property is held in the other person’s sole name. This is unless the non-owner can show they have made a direct financial contribution towards its purchase or there was a clear understanding that they would be entitled to a share of its value. The onus is on the non-owner to provide evidence to this effect. Claims can be made on behalf of any children still in full time education, but any capital settlement for the children usually has to be returned to the paying party when the children have left their full-time education. Therefore, in a situation where one partner has moved into a property owned by the other and they have been in a relationship for many years, have had children together and those children have now left home, the non-owning partner may struggle to have any share of the value of that property, or any financial entitlement.
- There is no entitlement to a share of pensions or any other savings or investments in the other person’s name, no matter how long the relationship has lasted.
- If one partner dies, the other would have to pay inheritance tax, there is no relief as there is for married couples.
Is there anything unmarried couples can do to protect themselves?
Taking legal and financial advice when you buy a property or move in together can help avoid coming unstuck should the relationship end or one party dies unexpectedly. Lawyers can prepare deeds of trust to record beneficial interests in property, cohabitation agreements and wills. However, at present, unmarried couples of the opposite sex continue to have a very different legal status from those who decide to marry, and civil partnership remains exclusively for same sex couples.
Sian Winter
Family law solicitor, Bicester
