The Unmarried Family - article by Louise Relph - 19th March, 2002

THE UNMARRIED FAMILY

Marriage – an outdated concept?

Socially, it really doesn’t seem to matter whether you are married or not. However, legally it makes a huge difference. Over the last 20/30 years, the media might be said to have done the public a great disservice. So many people have been lulled into the belief that somehow, when you’ve been together for a long time, you acquire rights and become “a common law husband or wife”.

The truth is very different. The position of the unmarried family is a real political hot potato, neatly avoided so far by successive governments. Remember the recent case of the young woman, with a new baby, who was the partner of an SAS officer killed on active duty in Sierra Leone? They had been together as a family for a number of years but, on his death, she was not regarded as his widow for pension purposes. That case was challenged and some monies have been offered but not on a par with what she would have received if she had been his widow. This highlights the problems and anguish that can arise for the unmarried family.

This isn’t the only way in which the law distinguishes between the married and unmarried family. The law can be a harsh and unfeeling beast. Its terms and language are stark and not politically correct. Terms such as ‘cohabitant’ and ‘illegitimate’ jar with many people and it may be that the law is out of step here, but that is how the law describes someone who is unmarried or whose parents were not married at the time of their birth.

Some facts for you to consider:-

• If you are married and things go wrong, then there are clear mechanisms to sort things out. It’s not easy, but at least there is a path to follow.
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• If you are not married and things go wrong, then the laws and mechanisms developed over many years, which apply to married couples, simply do not apply. There are no alternative rules. There are no grey areas. The strict laws of property will apply. There is no personal maintenance for either party, nor capital sums payable in lieu of maintenance. No rights to apply to share in pensions (although you can obtain financial support for children).
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• If you are married when your child is born, then both parents automatically acquire parental responsibility (All the rights and duties of a parent). Also, the child is legitimate and can inherit accordingly without need of any application to the court (A will can avoid most problems however).
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• If you are not married when your child is born, then only the mother automatically acquires parental responsibility. The father can acquire parental status, but this has to either be by subsequent agreement or application to the court. The child is considered illegitimate in terms of intestacy. The Government have said that they will have a look at this, although there is nothing on the horizon.
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  Food for thought!
  
  You could always put your head together with your partner and draw up an agreement as to what should happen if you separated, but that could only be a contract and you would have to satisfy a Judge that such an agreement was properly agreed and executed and enforceable. In truth, this seldom happens when you are happy and content and just starting out in a relationship. What might happen when you separate is the last thing on your mind. Nobody wants to risk upsetting the proverbial apple cart and when things go wrong, then its too late and you have to hope that enough goodwill is retained to sort things out amicably.
  
  Louise Relph, Partner of Cyril Morris Arkwright
  Accredited Specialist with the Solicitors’ Family Law Association