What rights do cohabitants have if they break up?

family law

ASK A FAMILY LAWYER

Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues.  Our first topic goes to Rachel Roberts, Stowe Family Lawa 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.

Stowe Family Law Web Team

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12 comments

Andrew - November 17, 2016 at 5:44pm

I think you mean it is not satisfactory for some female cohabitants, Rachel.
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It’s certainly fairer than it would be if we played let’s-pretend like children and acted as if people who have chosen not to marry had made a different choice.

Brian - April 18, 2017 at 2:20am

Cohabitation Rights Bill is nothing more than MCA 1973 s25 through the back door for unmarried women. FLA 1998 s33 covers unmarried women in rented accommodation. The cohabitation Rights Bill just mops up the rest. Cohabitation Rights Bill seeks only to redress grievances from those who wanted the security of marriage and was either denied it by the absence of consent of the other party to marry and stayed around instead of cottoning on the other party wasn’t wearing it and move on to find that security or redress the grievances of those who were ignorant of the consequences of cohabitation outside marriage. Ignorance alone is not an excuse to give individuals the clout of MCA 1973 s25 outside of marriage!

Deborah Pearson - November 17, 2016 at 9:48pm

I was cohabiting with my partner. He sadly died while I was pregnant. I remember being told that the coroners office could not speak with me as I was not next of kin (due to not being married). Lucky for me I get on with his family so they “gave permission” for the coroner and undertakers to treat me as next of kin. To add insult to injury I had to go to court to get a declaration of parentage in order to put his name on our son’s birth certificate – this was despite it being an IVF pregnancy and I had all the documentation to prove he was the father. In court I had to “swear that I had been monogamous” ….. It was just more stress on top of grieving. The law needs to change to reflect that society is very different to the 1950s.

spinner - November 18, 2016 at 11:16am

Why did you not get married ?

Deborah Pearson - November 18, 2016 at 1:15pm

We were engaged and had planned to. But we’d lived together for 4 years by this point and we had the IVF first because of my age, I was running out of time. We loved each other we wanted to stay together and we didn’t need to be married to prove that. Some of our friends who have cohabitated for years have decided to get married after what I went through. But then that makes marriage more about tax and benefits purposes.

I think that it is important for cohabiting families to have something written down formerly. It doesn’t have to be a marriage certificate but it could be instructions with a solicitor? Either way I don’t think our relationship was any less significant or important just because we didn’t have that magic piece of paper. It’s just a shame the law hasn’t caught up.

spinner - November 18, 2016 at 2:28pm

Agreed so some standard formalised legal agreement that specified your commitment to each other that you could both have signed up to that was essentially marriage lite without the big expense.
The only issue I have with what lawyers are proposing is that they want to do this without the explicit consent of both parties so after an arbitrary length of time or some measure they themselves will define they would sign both parties up to marriage lite without their consent.
I view this as fundamentally wrong because only the two people involved in a relationship can understand or define what level of commitment they have for each other.
Children are taken care of whether you are married, cohabiting or not by the CSA so it is only the adults that this law relates to.
It also means if this were to go through that millions more people’s personal lives would be bought within the legal framework which I assume lawyers are looking at as a rather juicy payday just when people are choosing not to get married for any number of reasons but surely one of them is because they explicitly don’t want lawyers involved in their personal relationships.

D - November 18, 2016 at 12:52pm

“In court I had to “swear that I had been monogamous” ….. It was just more stress on top of grieving”

How is this acceptable in a modern court? I know it’s not the same type of case/situation as a similar more controversial set of questions that are not allowed to be asked but it has the same degrading nature.

Deborah Pearson - November 18, 2016 at 1:50pm

Well according to the law (as quoted by the registra) the only garauntee of parentage is marriage. Because we all know that all married people are 100% monogamous all the time *sarcasm* It did feel degrading. I had to swear that I had always been monogamous in the relationship. But I gritted my teeth and did it because I wanted my son to have his dad’s name on his birth certificate

D - November 22, 2016 at 12:17pm

Very sad and sorry to hear that. I thought we were beyond this sort of thing in this country, but sadly not.

Brian - April 18, 2017 at 2:01am

“Swear to be monogamous”? Surely such claptrap law can be replaced by something called a DNA test of the child’s DNA? Surely lawmakers would make best efficient use of their time with amendments to law incorporating tests than surreptitiously give someone the benefits of marriage without being married via the back door? Maybe some people choose NOT to marry consciously because they believe marriage is inappropriate and it would see them right off if it all goes wrong (as it does to a high proportion nowadays). May as well call it common law marriage if you are going to hand out the same rights and privileges to those not married as to those who are married! Funny how in non marital cohabitation cases there are topics that gravitate a particular gender. Women focus on property (money and wealth) men with child arrangements (contact) issues! I won’t hear about contribution to carve a nice slice when things have broken down when risks were accepted (by legal contract – mortgages etc) by one party only while the going was good. Are we going to start having cohabitation agreements as well as prenuptial agreements and marriage and divorce? Cohabitation property laws!? That’ll cause champagne corks to pop in lawyers offices the country over – they’ll have something for everyone. Pretty important if marriage is on the decline! No wonder many MP’s are lawyers, they’re all trying to corner a market!

Deborah Pearson - April 18, 2017 at 10:19am

Well we couldn’t do a DNA tesr because I had my partner cremated. My son was born 3 days before his dad’s funeral, the emotional state of grief and loss combined with exhaustion from childbirth and euphoria of being a mum ….well all the roller coaster of emotions meant that I didn’t think to ask for blood or DNA to be taken from his body at the chapel of rest before I commited him for cremation. We had IVF so I had assumed that would be enough but it wasn’t for the purpose of registration. However 7 months later a judge was satisfied with a declaration of monogamy and the papers from the IVF clinic. So yes I am probably the first mother to get a declaration of parentage without DNA testing.

And yes Brian – the coroner and the under taker classed me as next of kin and let me organise the funeral. Just so you know his family are supportive and see me as part of their family too. God you are really coming across as judgemental and lacking in compassion

Deborah Pearson - April 18, 2017 at 10:24am

Brian the declaration of parentage does require DNA testing in most cases – I was the exception and I managed it in one day in a lower family court with little costs. I may have even set a legal precendent 🙂 who knows 🙂

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