Cohabitation

What rights do unmarried couples have upon relationship breakdown?

Couples who live together do not have the same rights and responsibilities towards each other as married couples. The concept of a “common law marriage” is a myth.

On the breakdown of a relationship between cohabitants, the Court has no power to order the payment of maintenance to an ex-partner and only limited powers to transfer assets between them. In order to do this, it will focus attention on how the ownership of assets has been documented by the couple. This may involve one of them having to make an application to the Court under the Trusts of Land and Appointment of Trustees Act 1996 for the Court to declare the nature or extent of their interest in the property.

How is the title to the property held?

If a property is owned jointly and there is no express declaration of the beneficial interests at the time of purchase then the starting point is that both own the property in equal shares. However, that presumption can be overturned by evidence that the couple’s common intention was different either at the time of purchase or subsequently which can be inferred from the conduct and dealings between them. If it is clear that their intention has changed over time but it is not clear exactly what their shares are, then the court can decide whatever division is fair having regard to the course of dealing between them on the facts of the case.

If one of the cohabitants owns a property in their sole name, in order for their partner to establish a beneficial interest in it, they would need to prove that they had made a contribution to the purchase/upkeep and improvement of the property or that there were express discussions and consequential reliance upon those discussions to their detriment.

How do I prevent my partner from acquiring any rights in my property?

Where one party already holds a property in their sole name, they may wish to consider entering into a cohabitation agreement which is designed to provide evidence to support the couple’s intentions as to the arrangement of their finances when they move in together. This may need to be updated over time. This would hopefully avoid future litigation if the relationship ends and there are arguments about intentions as to whether or not to share in assets and liabilities.

In respect of any property a couple may acquire in joint names, the best way of protecting their respective interests is to set out the terms of ownership in a deed of trust.

How can I obtain financial provision for my children when my relationship comes to an end?

The position is markedly different to the position in the event of a divorce. Nevertheless under Schedule 1 of the Children Act 1989, the Court can make a number of orders to benefit children financially at the end of their unmarried parents’ relationship, whether or not their parents have ever lived together.

Potential awards include:

• Child maintenance: this can be awarded by the Court only if the income of the non- resident parent is greater than the maximum threshold set by the Child Maintenance Service (formerly the CSA). A child over 18 can apply themselves for financial support for further education or vocational training.

• Lump sums: these are capital awards ordered for specific payments. They can be for past expenditure, e.g. reimbursement of expenses connected with the birth, and for future expenditure, e.g. a family car, a school fees fund or legal costs.

• Transfers or settlements of property: the Court will order this when it is necessary for the purpose of providing the child with somewhere to live. The applicant parent will have no interest in the property and it will revert to the non-resident parent upon completion of the child’s full-time education or increasingly until the child is 21 or completes their first degree.

What factors will the Court take into account when deciding on a financial award?

The Court will consider the following:

• What financial resources do the parents have?

• What other needs and responsibilities do the parents have?

• What are the child’s financial requirements?

• Does the child have any disabilities which need consideration?

• What plans do the parents have with regard to the child’s future education?

For the court to consider these factors fully, each parent will be required to disclose fully their financial position, available assets and income.

Is there a programme for law reform?

In terms of forthcoming changes to the law on cohabitation, progress has stalled somewhat. In February 2011, the then President of the Family Division called for new rights for cohabitants on relationship breakdown. In September 2011 the coalition government announced that it did not intend to take forward the Law Commission’s call for reform. On 9 October 2013 a Private Members Bill, the Cohabitation Rights Bill, received its first reading but this has made no further progress and it is now safe to assume that the legislation will not be enacted in this parliament.

For advice please speak to one of our Family lawyers. Learn more about living together agreements here.