Cohabitation - what happens about finances if your relationship ends and you are not married?
The principles which deal with the division of assets when unmarried couples separate
A popular myth has persisted for years that if a couple live together for, say, six months, three years, five years etc, they automatically acquire rights against the other. That is not the case. Common-law marriage was actually abolished in 1753.
If you live with someone and your relationship ends the only legal claims that you may be able to make are as follows:
- in respect of the family home - the court will need to consider how the property is legally owned by you and your former cohabitee (see below)
- child support - an application can be made by you to the Child Support Agency for child maintenance
- in some circumstances you can make a claim for additional financial support for your child under the Children Act 1989 (see below)
The court does not have the power to order your former cohabitee to pay maintenance to you for your benefit or vice versa. Only child maintenance can be ordered, which is often dealt with through the Child Support Agency (CSA). Likewise, the court does not have the power to order that your former cohabitee provide you with a lump sum or a pension sharing order.
Advice should however be taken if you or your former cohabitee are Scottish and one of you has retained a Scottish domicile. This is because the law in Scotland changed in 2006 and now gives financial rights to former cohabitees. It may be possible to bring a claim against your former cohabitee in Scotland, even if a claim could not be brought in England or Wales.
Legal disputes in respect of property
The court can resolve disputes between you and your former cohabitee regarding the ownership of property. Where a property is owned jointly by you and your cohabitee, the usual starting point will be that the property is owned equally, regardless of the financial contributions made by you both. The position will depend entirely upon documents signed at the time of purchasing the property.
Where the property is owned by you only, complex legal arguments may arise if your former cohabitee wants to establish a legal interest in that property. They may be able to establish a 'resulting trust' arising from financial contributions they have made to that property, such as paying towards the deposit or paying for improvements.
Alternatively, they may try to establish a 'constructive trust' arising from promises made to them by you and the fact that they relied upon those promises to their detriment. These arguments are unusual and can be very difficult to prove.
Financial provision under the Children Act 1989
If you have separated from your former cohabitee and do not have sufficient money to rehouse yourself and your child (who must be 18 or younger), you may be able to apply to the court for financial provision under the Children Act, to assist you with this. The most common approach of the court is to order that your former cohabitee, who must be the parent of your child, provide a property for you and your child to live in until your child becomes an adult or finishes full time education. The property will be owned by your former cohabitee and will be theirs when your child leaves home.
In limited circumstances, the court may also order your former cohabitee to pay a lump sum to meet specific capital requirements for your child.
Family law solicitors
To arrange a discussion with a family law solicitor click here or call us on 0800 840 4929. We are available to take your call twenty four hours a day, seven days a week.
