What rights do cohabitants have if they break up?
November 17, 2016 8 comments
ASK A FAMILY LAWYER
Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues. Our first topic goes to Rachel Roberts, a Partner in our Leeds office.
“I have lived with my partner for several years but we have never married. What rights would I have if we break up?”
What is the current law on cohabitation?
As the law presently stands, you do not automatically acquire rights against your partner simply by virtue of your cohabitation. The widely held notion of a “common law wife” is a misconception. It is only marriage that gives rise to financial obligations and claims simply as a consequence of the relationship. There is presently a bill before parliament called the Cohabitation Rights Bill, which is intended to provide people who live together with the potential to make claims against their partner, similar to those that can be made upon divorce. However, this is still only in the very early stages of consideration and it remains to be seen whether the bill will succeed and if so, exactly what rights this will award to cohabitants.
On what grounds can I make a claim against a property?
That said, there are a number of other possible claims that can be made, depending on your individual circumstances. If the property you live in is owned rather than rented then you may have a claim against it, even if your name is not on the title deeds. Such claims are dealt with via civil proceedings under the Trust of Land and Appointment of Trustees Act 1996. This is a complicated area of law and you would need to provide clear instructions about the history of your relationship, your joint intentions about the ownership of the property and your contributions to it, to enable advice to be given on the prospects of successfully making a claim.
Can I make a claim against a property if we were engaged?
If you were engaged but did not marry, there is also the potential to make claims under the Married Women’s Property Act 1882 for the Court to resolve disputes over the possession of property, including personal property. Civil proceedings over personal belongings and contents of the home are also a possibility, but often the costs of such proceedings will outweigh the potential benefits.
My ex-partner and I were not married but had children. Can I make a claim against the property?
If you have children together, it is possible to make claims on behalf of a child or children under Schedule 1 of the Children Act 1989. These claims can be for income (including a carer’s allowance), housing and lump sum payments. In terms of income, claims can only be bought where a maximum Child Maintenance Service assessment has been carried out, i.e. the CMS has already assessed the paying party as having a gross income over £3,000 a week. The Court can then, if appropriate, order top up payments. Housing can be provided to meet the needs of the children, but this will be on trust and revert back to the paying party at the end of the children’s minority. Capital payments can be made to cover specific child related costs, such as furniture, a vehicle to transport them etc. In practice, these cases tend to involve wealthier parties.
Overall, the law as it stands is not particularly satisfactory for cohabitants, but it is important to take specific advice on your individual circumstances in order to consider what, if any, claims you may have.
Rachel Roberts joined Stowe Family Law as a trainee solicitor after studying at the University of Northumbria in Newcastle. She qualified in 2004.
November 17, 2016
Categories: Stowe Family Law