Marilyn Stowe Blog

A Cohabitation Conundrum – by guest blogger Hayley Edwards

Much has been written by Marilyn Stowe about cohabiting couples and their rights (or lack thereof). I recently helped a client whose problems are so complicated, they could form the basis of an exam question on cohabitation.

This man was given a substantial sum of money by his parents when he was just 21. He decided to invest it. He bought four properties with the money and spent the remaining £50,000 refurbishing one of them. He has nothing left.

He took his girlfriend to a solicitors’ office; because they were in love and he intended to marry her, the properties were actually purchased in their joint names. His solicitor did not ask him to consider what would happen if the relationship broke down. So nothing was agreed and no protection was obtained for all the money he had put into those properties.

The couple lived together in the most expensive property. Her relations moved into two of the others and his sister moved into the remaining property, on a rent-free basis.

Then the girlfriend became pregnant and a baby. My client has evidence that another man is the father, although the girlfriend denies this. She refuses to move out of the house and “wants her share.” She is suggesting that he sees the baby once a fortnight. To the client’s disbelief he has now also heard from CMEC (formerly the CSA), who require him to maintain the child.

An exam question would state, “Advise the client”. I wonder, how many students would skip it and move on to the next question, hoping that it might be easier?

With a conundrum such as this, where do you start?

I’d begin by recommending the fourth edition of Cohabitation, Law Practice and Precedents by Wood, Lush, Bishop and Murray, which was published earlier this year. It is brilliant and provides succinct answers to this client’s problems, along with all the necessary precedents and court applications.

So how should one advise?

The first step is to ensure that the properties are indeed jointly owned.  The Land Registry form TR1, which is completed whenever a property is purchased, now requires the parties to a property transaction to state whether they hold the property on trust for themselves beneficially as joint tenants, as tenants in common in equal shares or as tenants in common in such shares as might be specified.

As this client appears not to have had advice to protect his contribution, I would expect the form to say they hold the property as beneficial joint tenants. If this is the case, it is almost impossible to avoid a 50:50 split.  The TR1 forms should have said that the properties are held as tenants in common in such shares, as might be specified or as contained in a separate Trust Deed.  The book gives precedents to use, of various different types of trust.

If it appears that the solicitor has not advised properly, a negligence claim against that solicitor may follow. Such a claim runs for three years from when the potential claimant discovers the problem. In this case, if the client had no such advice, then he clearly has a claim against his former solicitor and can sue for the financial loss that he will incur.

My client can seek an order for sale of all the properties under the Trust of Land and Appointment of Trustees Act 1996. He can seek an order for occupation of the properties inhabited by the relatives under the law of landlord and tenants.  The girlfriend, however, has a right of occupation and will continue to hold that right until the present home is sold.

As for the baby, the client can ask for a DNA test to be arranged through CMEC. If the child is confirmed as his, he is liable to pay child maintenance based on a percentage of his income.

He may also have financial obligations under the Children Act 1989 as Schedule 1 enables the Court to make orders for periodical payments, lump sums, settlement of property and transfers of property.  In the case of periodical payments the Court has limited jurisdiction, but can make top-up payments against the amount payable under the Commission.  For example, if a client has a substantial income and receives the top CMEC assessment, the Court can order him to make further payments to meet his child’s needs.  In such circumstances a periodical payments order under the Children Act can include an amount to reflect the contribution of the parent with care to the child’s upbringing. This is known as a “carer’s allowance” and is somewhat akin to spousal maintenance.  The Court can also order, quite separately to CMEC, the payment of school fees and lump sums or property transfers to provide a home for the child, although such lump sum or property would be returned to my client upon the child attaining the age of 18.

Hayley Edwards became an Advanced Member of the Law Society’s Family Law Panel in 2002, and joined Stowe Family Law in 2004. One of the firm’s team leaders, she specialises in cohabitation cases and has been particularly commended by clients for her attention to detail.

 Swordfight image credit: MC Quinn.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

Related posts:

1. Cohabitation: England v Scotland – by guest blogger Jennifer Hollyer
2. The Scottish statutory cohabitation scheme by guest blogger John Fotheringham WS
3. Cohabitation and the “common law marriage” myth
4. Cohabitation and our cowardly lawmakers
5. Cohabitation v remarriage: what's a breadwinner to do?