05th Sep 2016

Debunking cohabitation myths

In this blog, Family Law in Partnership associate Mariko Wilson discusses some commonly held false beliefs regarding the legal rights of cohabiting couples, and the advice practitioners should give clients to protect themselves.

There are many areas of law where the public’s understanding has been distorted by rumour or by media reporting designed to sensationalise. One of the most commonly misunderstood areas of family law is cohabitation. What follows is an attempt to separate the myths from the facts!

  • MYTH – a couple living together will become common law husband and wife after a certain period of time.

Cohabitees will remain cohabitees unless they marry. The Court cannot apply divorce laws to cohabiting couples, regardless of how long they have lived together, or how unfair the outcome might be.

  • MYTH – at the end of a long relationship which has produced children, the party who is weaker financially has an entitlement to some of the family capital.

Again, this is not the case. For cohabitees, the starting point will be that any assets that either person holds in their sole name will generally remain theirs free of any claim from the other on separation. In some cases, this can mean that a partner who has co-habited for decades will leave the relationship with nothing, because the other person owned the house in their sole name.

To claim a share of a property held in one party’s sole name, the other party must demonstrate a common intention that they should have a beneficial interest in the property and that they acted to their detriment on this basis.

Where property is jointly owned, it’s likely that both parties will be entitled to a share in the asset.  The exact shares will depend on what the couple specified in writing when they bought the asset or, failing that, their common intention as to their respective shares. Very few couples document the intricacies of their financial relationship though and, as a result, the existence of “common intention” can be difficult to prove.

If there are dependent children then on separation the parent with care may be able to obtain maintenance for the benefit of the children and, in more limited circumstances, help with meeting the children’s capital needs, like housing. However, that parent would not be able to obtain additional maintenance for themselves (as a married parent could), and any capital recovered to meet a child’s needs will revert back to the paying parent upon the child reaching majority.

  • MYTH – cohabitees inherit each other’s assets on death in the absence of a will.

When a person dies without leaving a valid will, their property must be shared according to the rules of intestacy. Only married or civil partners and other close relatives can inherit under the rules of intestacy. Unmarried cohabitees have no right to inherit under these rules.

  • MYTH – unmarried couples have the same rights in connection with their children.

Again, this may not be so. An unmarried father may not have the same rights as a father married to the child’s mother.

If the parents were married when the child was born, both have parental responsibility. An unmarried father only has parental responsibility if his child was born after 1 December 2003 and he jointly registered the child’s birth. Failing that, parental responsibility may be obtained by agreement with the mother or by Court Order.

  • MYTH – the legal situation with regard to cohabitees is evolving and cohabitees will soon be better protected by the law.

There have been proposals to change the law relating to cohabitees; in 2007 the Law Commission published its report (The Financial Consequences of Relationship Breakdown Law Com No. 307) which made recommendations for law reform. After publication, however, it was shelved and the government has said that it does not intend to change the law in this area at present.

The law in this area is considered by many to be unsatisfactory, and so here are 5 tips which if followed, may help cohabitees avoid common pitfalls and/or smooth the division of property if the relationship ends:

  1. Be in the know – knowing what the legal outcome would be on separation means parties can take steps to remedy an unsatisfactory outcome, or take additional steps to safeguard their position if needs be.
  2. Be clear about intentions with regard to property ownership from the outset and record it properly.
  3. Make a will.
  4. Talk about money matters and children. Consider signing a cohabitation agreement to regulate the financial relationship both during, and after the relationship.
  5. Take legal advice where there is a lack of understanding and when making big life decisions (like moving house, inheriting, illness etc.)

There is a statutory regime to determine claims between married couples and civil partners at the end of their relationships. No such regime exists for cohabitants, meaning they are often left vulnerable at the end of a relationship. Whilst the hope remains that there will be legislative reform, this may still be a long way off. It is vitally important therefore that cohabitees understand their legal position; the consequences of getting it wrong are too important to ignore.

This article first appeared in Solicitors Journal 160/30 2 August 2016.

Mariko Wilson is an associate at Family Law in Partnership. She handles all aspects of private family law and has a broad range of experience, frequently acting for high net worth individuals in financial relief and divorce proceedings as well as acting in children matters. Mariko has acted on a number of complex cross border financial matters, often advising non tax resident and non tax domiciled individuals, entrepreneurs and individuals from the financial sector. She also has experience in dealing with property claims brought by third parties and unmarried cohabitants under the Trusts of Land and Appointment of Trustees Act 1996. To find out more about how Mariko can help you, contact Mariko on 020 7420 5000 or by email on mw@flip.co.uk