Legal Rights of cohabiting parties
Posted: Wednesday March 18 2020
By: Rachel Roberts
I regularly take instructions from new clients who have lived with their partners for a number of years and are confused about what rights this may give rise to if they separate. Worst still, they often hold incorrect beliefs as to what they are entitled to, and in many cases have relied upon those beliefs throughout the relationship and made decisions based on false premises. In my time in practice, I have experienced an increase in the number of enquires of this nature, which is doubtless borne out of the decreasing number of marriages taking place. The high cost of weddings along with diminishing societal pressure to get married are just a couple of reasons why marriage rates have reached an all-time low since records began.
Legal Rights of cohabiting parties
According to the Office for National Statistics, the proportion of the population aged 16 years and over in England and Wales who are married has steadily declined to 50.5% in 2018. Meanwhile, the number of cohabitees has increased to 5 million people – over a 50% increase since records began.
The difference between marriage and cohabitation
The starting point, which I find often comes as a shock to clients, is that it is largely a myth that cohabiting gives you the same legal protection after the breakdown of your relationship. The law is very different to when a marriage breaks down, in that you are not entitled simply by virtue of your relationship to make a claim against your partner’s finances, be it income, pension, savings, or even property.
While the terminology of “common law spouse” is used socially, legally, the position of someone who cohabits is very different from that of someone who is married. Ultimately cohabitants have little or no legal protection at the end of a relationship, irrespective of how much time they have spent together. Where there has been an engagement and a commitment to marry, there are some fairly limited additional provisions that you may be able to rely on, but in practice these are rarely used.
Cohabitants rarely understand the legal implications of moving in with their partner or purchasing property with them. The significance of who legally owns the house (so the person whose name is on the title deeds) is far more important than when you are married, and your prospects of seeking a share of assets which are not owned in your name are significantly reduced outside of marriage.
Lots of cohabitants do not understand that if their relationship breaks down then they do not generally have any entitlement to maintenance even if they have been the weaker party financially and/or have been dependant on their partner during the relationship. The only statutory obligation is for the payment of child maintenance for any children of the relationship. I have dealt with many cases where this has led to significant financial hardship.
Statutory financial support for children is often paid via the Child Maintenance Service. It is worth considering their website which contains details of how an assessment is carried out, the factors that are taken into account and how to apply through them. People are encouraged to first try and reach a voluntary arrangement, but if not, the CMS can both do an assessment and assist in collecting the maintenance (at a cost).
You may be able to make financial claims in certain circumstances
All that said, there are certain legal options available if there is a dispute over property or relating to financial provision for children.
If the dispute relates to a property that is jointly owned but the shares are disputed, or is in one of the party’s name but the other thinks they are entitled to a share, a claim can be bought under the Trusts of Land and Appointment of Trustees Act 1996 to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share.