Tangled route to separation for odd couples
Barely a generation or two ago it was probably inconceivable, if not scandalous, for a couple to live together in an intimate relationship out of wedlock.
Conversely nowadays attitudes against cohabitation have given way to acceptance. As a matter of fact, more and more couples are now choosing to move in together without getting married.
It is undeniably clear that, in Europe, marriage is no longer the only accepted form of cohabitation between two persons. Accordingly, a growing number of European countries have taken measures to provide legal protection to unmarried partners, albeit in different degrees. Even though most European Countries recognise cohabitation, obvious disparities exist in the way they regulate these living arrangements. The approach ranges from a relatively liberal one in certain countries to a more restrictive approach in others.
Couples may decide to live together for a myriad of reasons. Some look at cohabitation as a way of avoiding the risk of divorce should their relationship break down, others as an alternative way of establishing their bond, where marriage in their country would otherwise be illegal, such as in the case of same-sex couples. Additionally, certain couples may wish to maintain their single status for financial reasons.
This rapid rise in the number of cohabiting couples did not come about without its own legal intricacies. In Europe, various conditions need to be fulfilled before the cohabitation of a couple is recognised by law. These requirements vary from one country to another and so do the rights that emanate from this relationship. Different legal systems, which recognise this kind of living arrangement, have their own distinct ways of defining it. However, in practice cohabitation boils down to an emotional and physical intimate relationship in which two people, who are not married, share a common living place. In most cases this also includes same sex couples.
When two people live together in a stable and intimate relationship they enter into financial commitments. There is also a chance that they may have children. While the relationship is plain sailing couples are unlikely to be troubled about the legalities of their rapport. They live together, share their belongings, raise children and progress with their lives. It's when the relationship ends that turmoil begins.
Not all cohabitants are aware of the legal consequences arising from their rapport. The economic implications in particular are at times overlooked. It is a popular misconception that after a couple have lived together for a certain length of time, their relationship enjoys special protection under the law and they acquire exclusive legal rights, similar to those enjoyed by married couples. As a result, and in certain countries more than in others, they face unpleasant surprises when their relationship actually comes to an end.
Indeed the reality is that, more often than not, unmarried couples do not enjoy the same privileges as married ones and there still remain obvious differences between their respective rights.
While some countries, including Scotland, have endeavoured to bridge the gap between the rights available to married couples and for cohabitants who have no rights at all, other countries still fail to grant cohabiting couples any form of legal recognition.
This situation is currently being tackled in Malta which to date, similar to the Republic of Ireland and Italy, does not legally recognize cohabitation. Currently, discussions are underway to amend a provision which penalises married couples for failure to pay child maintenance established by court order, but does not equally punish unmarried couples for such default, since they are not yet recognised by law. As a consequence, criminal proceedings for failure to pay such maintenance may only be initiated against a spouse while an unmarried parent would evade such proceedings in view of this current loophole in the law.
"Its a popular misconception that after a couple have lived together, their relationship enjoys special protection under the law and they acquire exclusive legal rights similar to married couples"
In the Nordic countries of Denmark, Sweden and Finland there is a high incidence of cohabitation. It comes as no surprise that these states recognise this living arrangement, albeit in their own distinct way. In Sweden non-marital co-residential relationships seem to be more widespread and are regulated by distinct legislation which provides for a set of rights for cohabitants mainly related to tenancy and property. This law applies equally to cohabiting and unmarried same-sex and heterosexual couples.
In France, cohabitation is also very common. Hoverer it still does not have the same consequences as marriage. Although the law recognises informal cohabitation between two persons of the same or of the opposite sex, couples who opt for this kind of living arrangement are afforded limited legal protection. However the law allows couples, whether of the same or the opposite sex, to enter into civil pacts of solidarity to legalise their relationship without entering into marriage. These contracts enable the couple to organise their joint life while establishing certain rights and obligations.
Furthermore, they grant couples more rights than informal cohabitation, although still less than the prerogatives deriving from marriage.
Scotland has also experienced significant legislative changes in this evolving and delicate sphere of law. With the coming into force of the Family Law (Scotland). Act 2006 important rights for cohabitants have been introduced, which rights apply equally to same sex as well as opposite sex cohabitants.
The fact that a couple are living together does not in itself generate rights and duties. Consequently, it is only where a couple live together as though they were husband and wife or civil partners that they may be considered cohabitants for the purpose of this law. This is a matter to be determined by the Courts after taking into consideration various pertinent aspects of the relationship.
There is no minimum period of cohabitation which must elapse before the couple acquire rights and obligations as cohabitants. However in determining whether they qualify as such the Court takes into consideration, amongst other factors, the length of time they have lived together.
Due to these developments it is now possible for a cohabitant to apply for financial provision when the cohabitation ends other than by death, namely when the couple cease to cohabit. The application has to be made within one year from when the parties cease to live together. The financial provision may take the form of a capital sum for the applicant, which may be even payable by instalments, or a payment to cover the economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents. The court may also grant interim orders as it deems fit. Before granting any such orders the court however must carry out a balancing exercise. In so doing it must consider whether the defender has derived any economic advantage from contributions made by the applicant and whether the applicant has sustained economic disadvantage in the interests of the defender and any relevant child.
The law also deals with the rights of ownership of cohabitants over household goods. In this regard there is a rebuttable presumption at law that each cohabitant has an equal share in any household goods acquired during the period of cohabitation. This however does not apply to goods acquired by gift or succession from a third party.
Amongst other rights, the Act also provides for financial provision on intestacy, subject to certain conditions. Indeed this right only exists where there is no will in which case it is possible for the surviving cohabitant to apply for financial provision out of the deceased's estate. This provision can take the form of a capital sum - which could be a lump sum or payable by instalments - or a property transfer from the deceased's net intestate estate. In making such an award, the court cannot grant the survivor a higher amount than that to which the survivor would have been entitled had he or she been a surviving spouse or civil partner of the deceased. Furthermore any such order must be made from the deceased's net estate after provision has been made for payment of inheritance tax, liabilities of the estate and any prior or legal rights of a surviving spouse or civil partner. A claim under this provision must be made within six months beginning from the date of death of the deceased.