Divorces mark the end of a marriage and mean that either party is welcome to marry again. On the other hand, the term separation tends to refer to a couple who are splitting up but weren’t necessarily married. It may also refer to couples who do not want to be together but do not necessarily want to end their marriage at that point; it is an indicator that they are no longer living together.
Separation and the family home
Whether a couple divorces or separates is extremely personal and will depend entirely on family circumstances at the time. Being married and separating instead of divorcing may actually more beneficial to both parties, as they may retain benefits such as private healthcare or maybe leaving the gate open for reconciliation.
Separation is a good first option for married couples to consider if they are unsure of divorce. However, it needs to be discussed thoroughly – in particular, when it comes to what to do with the family home.
Will I get 50% of the family property?
How much you will receive if you decide to sell your home following a separation is not always as easy as a 50/50 split. Different factors will be taken into consideration, such as the amount of money each partner has put into the property, how the deed reads, and any details based upon when you bought the home.
Sometimes it is possible for couples to agree on how a property is split upon separation. However, solicitors and the courts can decide on a fair outcome for you if this cannot happen. What must be remembered, however, is that cohabiting couples do not have the same legal rights to property as a married or civil partnership couple. Legally, cohabiting couples have no financial responsibility to one another after a separation; only if children are involved.
Laws surrounding unmarried couples and separation are complex and most legal professionals deal with the facts from each couple on a case by case basis.
Some unmarried couples have cohabited for years and, even if one partner legally owns the house the other may be entitled to claim if a ‘trust’ has arisen. A trust refers to a partner making financial contributions such as paying the mortgage, paying for an extension or new windows. In short, trust is when a couple has an implied agreement relating to a property that is shown through behavioural or financial contributions.
Even if one partner is not on the title deeds of a home, or if decisions and agreements have only been verbal, both partners can be beneficiaries of a trust. No legal paperwork needs to be completed for there to be trust – hence making them a complicated area of the law. If separating partners cannot agree on the division of assets (including property) then the guidance of solicitors and court proceedings may need to be considered.
Around one in four people cohabiting with a partner believe they have the same legal protection as married or civil partnership couples. However, with more and more unmarried couples living together in the UK, cohabitation agreements are becoming commonplace.
A cohabitation agreement allows couples to define who owns what and how you would split your property and other assets should you split up. It can also set out how you and your partner will manage the day to day finances whilst cohabiting and eradicate the need for any lengthy legal proceedings should the relationship break down.