Cohabitees are the fastest growing type of family in the UK. Unbelievably, our current laws do not bestow any rights at all upon separating cohabitees; they continue to be treated as two unrelated individuals. This lack of protection is compounded by the myth of the ‘common law marriage’ – spoiler alert: there’s no such thing. A survey commissioned by Resolution found that two-thirds of cohabiting couples believe common law marriage exists. People think that if they live with someone for long enough, some rights and protections must automatically arise.
When married couples divorce, a yardstick of equality is applied to their finances by the law i.e. the starting point is 50/50. Not so for separating cohabitees. When cohabitees separate, their only redress is to rely on the patchwork of legal rules which can often lead to unfair outcomes. The legal system that cohabitees have to use was not built with an understanding of the human and familial relationships that fall under its jurisdiction. For divorcing married couples, there is the Matrimonial Causes Act 1973, specifically created to reach fair and workable outcomes for family breakdown. No such legislation exists for non-married couples when their relationships breakdown, as the law doesn’t actually recognise their relationships at all.
Cohabitees have no right to spousal maintenance, no entitlement to inherit from a deceased partner under the intestacy rules, no tax benefits like the marriage allowance, and unmarried fathers have no automatic parental responsibility for their children. Our current laws indirectly discriminate against cohabitees by failing to recognise that upon separation they face the same legal problems as married couples. Whilst the main issues are the same – how to divide the home, money and children – more creative and challenging legal remedies must be utilised by cohabitants.
Cohabiting couples can enter into an agreement which sets out arrangements that will apply while they are living together and what would happen if the relationship breaks down. Cohabitation agreements rely upon basic principles of contract law. To be effective, the agreement must be drafted after a couple have started cohabiting, so that it cannot be said the cohabitation was a prerequisite to the agreement. Whilst there is a presumption that in domestic situations parties do not intend to create legal relations, this is rebuttable where a written agreement is produced and it can be shown parties took separate legal advice. Taking independent legal advice will also help to prevent any assertion that there has been undue influence. The requirement for consideration, as per the principles of contract law, can be disposed of by executing the agreement as a deed.
When acquiring a home together it is always advisable to ensure both cohabitees’ names are on the legal title and that there is a declaration setting out how the beneficial interests are held. The legal title to a property can only ever be held as joint tenants, but the beneficial interest can be held as either joint tenants or tenants in common.
If a home has been acquired as joint tenants in equity and the legal title is also held jointly, then you can sever your beneficial interest so that it is held as tenants in common. An application can then be made under s14 of TOLATA for an order for sale and the proceeds to be divided equally. Where a declaration of trust has been made to hold the beneficial interest as tenants in common, the declaration will be decisive and proceeds divided in accordance with this.
The position is more complex where there has been no declaration of trust and the legal estate is in one person’s name. The presumption in these circumstances is that the person who owns the legal estate also has the whole beneficial interest. Any person seeking to argue they have a beneficial interest will have to rely on the law of trusts and seek to establish a claim in equity. If no financial contribution was made to the purchase price of the home at the outset, it can be an onerous task trying to evidence that a beneficial interest arising from a common intention. The court to carry out an investigation of statements made in the entirety of the parties’ relationship to assess whether there has in fact been a common intention. The court will then decide whether an equitable interest has been established, and if so, it will then determine what share of the property each person is entitled to.
Whilst neither cohabitant is able to claim maintenance from the other upon separation, Schedule 1 of the Children Act 1989 (“Schedule 1”) provides an effective means to seek maintenance for any child of the family. The law has always been clear on this front: a parent cannot escape duties to their child. On an application under Schedule 1, welfare is not the paramount concern, though will undoubtedly be taken into consideration. Schedule 1 provides a method for the primary carer to obtain a home and maintenance for a child of the family; it does not provide a long term solution for support for the primary carer. It does, however, provide some support for a parent in their capacity as a primary carer. For example, no court will order periodical payments allowing for a primary carer to put money aside for their own future, but a court will allow for a reasonable amount to support the primary carer whilst looking after they are looking after the child.
It is not in anyone’s interest for separating cohabitants to have to rely on the above remedies which are based on contract law or trusts law and can often lead to unfair outcomes. Cohabitants should not be placed at a disadvantage for deciding not to enter into the institution of marriage. With social norms changing, there needs to be a legal framework designed to do justice for cohabitants in the longer term.
A Private Member’s Bill was introduced into the House of Lords in July 2017 aiming to provide financial protection for cohabitants, including provision to apply to the court for a financial settlement order. The Bill also makes provision about the property of deceased persons who are survived by a cohabitant and pension sharing. A second reading of the Bill is currently awaited, but similar Bills have previously been introduced and not passed as an Act.