There is a great deal of confusion surrounding cohabitees and their legal rights either on separation or on the death of their partner.
Many cohabitees wrongly believe that they have the legal protection of common law marriage and that the longer they live with their partner, the more rights they have.
In fact, common law marriage is hasn’t existed in England and Wales since 1753. Legal rights for unmarried couples are minimal, regardless of whether couples have cohabited for one year or several decades.
English law treats unmarried couples very differently to married ones. Should you or your partner decide to end the relationship you should be aware of the potential consequences that may arise.
In contrast to married couples, cohabiting couples have no legal obligations towards one another that arise from their relationship. They can however, have legal obligations that arise from other sources such as owning a property or having children together.
It is usually only on separation that unmarried couples become sometimes painfully aware of what legal rights they have. The law generally treats them as unrelated individuals. Unless jointly owned, they will have no rights in relation to each other’s assets except in limited circumstances outlined below.
The majority of cohabitation disputes are usually in relation to the home. While the courts have a broad jurisdiction to achieve fairness on divorce, when the parties are not married, the strict laws of property and trusts apply. These were not designed with families in mind which is why results can seem particularly unfair. The way the law is applied depends on how the property is owned:
Generally, if the property is only in one person’s name, the other person will get nothing, no matter how long they have lived there. The only exception to this is if they can establish that they have a legal interest, usually in the form of an ‘implied trust’.
In order to establish that such a trust exists, it is necessary to establish that there was a common intention between the cohabiting couple that they should both have a legal interest in the property. The non-owning person must show that there were express discussions between the couple relating to ownership of the property.
Once the intention has been established, it must also be shown that the person relied on this to their detriment. Usually, detrimental reliance means that they contributed money to the property in some form by paying for repairs or by paying the mortgage or in some circumstances, carrying out substantial DIY jobs themselves. Caring for children or simply looking after the home is not enough to show detrimental reliance. Alternatively, if a person cannot prove that there were any express discussions relating to ownership, he or she may still be able to establish an interest in the property by proving a financial contribution towards it such as contribution to the purchase price or assuming responsibility for mortgage payments. In addition, when a non-owner contributes directly to the purchase price of a property, the court will infer a trust unless it is clear that the money was a gift.
Unless there is a declaration of trust which sets how the property is owned, the law will assume that both parties own it equally. This is the case even if one person has made a larger financial contribution. It is possible to argue that the property is not owned in equal shares but this is difficult to do unless there is clear evidence that this is the case.
If one person is contributing more money toward the purchase of a property, it is sensible to have a declaration of trust drawn up to make it clear that one person owns more.
When a cohabiting couple separates, either person can apply to the court to force sale of the property so that they can receive their share of the equity. In contrast to the case with married couples, the court cannot award one party more money because they are in greater need. Unless the property is worth a lot of money, it often becomes very hard for cohabiting couples to rehouse following separation, particularly if they are unable to afford a large mortgage on their own.
If you own or have joint ownership in a property and thinking of separating you should seek early legal advice.
On divorce, the court can order one party to the marriage to pay maintenance to the other either indefinitely or for a fixed period of time. This is often the case where one spouse has stayed home with the children rather than working and as a result has a lower earning capacity. This does not exist in relation to cohabitants. This means that even if a person is unable to work through illness that there is no obligation on their former partner to pay any maintenance and they would instead have to rely on state benefits.
Different rules apply where a couple has children. Both parents have a legal obligation to financially support their children, regardless of whether they are married to each other. It is possible for a parent to apply for financial provision against the other parent in relation to the children. The court can make a range of orders including requiring the parent to pay child maintenance, transfer a property or pay a lump sum to the other parent for the benefit of the child(ren).
It is important to stress that all financial orders are made for the benefit of the child(ren) and that once they grow up, the financial support will come to an end.
Many people are surprised when they become aware of the limited rights they have on separation which is probably partly due to the media using terms like ‘common law wife’ which may lull people into a false sense of security that they will be protected.
The huge contrast between the treatment of married couples and cohabitants has led the Law Commission to recommend legal reform to enable cohabitants to receive some of the same protection as their married counterparts. However, as yet this is not in force and for now, cohabitants need to be aware of their position and take steps to safeguard it.