Cohabitation - A Practical Guide

A. Principles Which Deal With The Division Of Assets On Separation

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 a relationship of a cohabiting couple breaks down the only legal claims arising may be as follows:-

• In respect of the family home - the court will need to consider how the property is legally owned between the cohabiting couple
• Child support - an application can be made to the Child Support Agency
• Claims for additional support for children under Children Act 1989.

Accordingly, the court does not have the power to order payment of maintenance to a former cohabitee for themselves. Only child maintenance can be ordered through the Child Support Agency (CSA). Likewise, the court does not have the power to order the payment of lump sums, pension sharing etc.

Advice should however be taken where either person in the couple is Scottish and has retained a Scottish domicile. The law in Scotland changed in 2006 and gives rights to former cohabitees. Although legal claims cannot be brought in England, it is possible that a legal claim could be brought in Scotland.

B. Disputes In Respect Of Property

The court can resolve disputes between former cohabitees in respect of the ownership of property. Where a property is owned in joint names, the usual starting point will be that the property is owned equally, regardless of the financial contributions made. The position will depend entirely upon documents signed at the time of purchasing the property.

Where the property is owned by one person only, complex legal arguments may arise if the other cohabitee wishes 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, it may be necessary for them to establish a 'constructive trust' arising from promises made to them by the person who owned the property and also the fact that they had relied upon those promises. Such arguments are however usually and can be very difficult to prove.

D. Financial Provision Under Children Act 1989

Applications for financial support under the Children Act are relatively uncommon. If an unmarried mother does not have sufficient money to re-house herself, she may be able to apply to the court for financial provision under the Children Act. The most common approach of the court is to order that the absent father provides a property to be held in trust for the children until a specified date in the future. When, say, the youngest child finishes education, the property would be sold and the money reverts to the absent parent.

In limited circumstances, the court may also order the payment of a lump sum to meet specific capital requirements of the children.

For a consultation with a Family Law Solicitor or a Divorce Lawyer call 0844 980 1428 or send us an email. We are available to take your call twenty four hours a day, seven days a week.