Together but apart
Many cohabiting couples rely on the notion of “common law marriage” to tidy up their legal and financial affairs in the event of a relationship breakdown. In fact, at least at present, there is no such thing. What are the potential implications of this misconception? And how might cohabitees best formalise and protect their respective interests?
Jane Keir, Senior Partner, Kingsley Napley LLP
Beyoncé sang “put a ring on it” and it is sound advice but make sure it is a wedding and not an engagement ring. The problem is that English law distinguishes starkly between the rights and remedies of those who are married and those who live together and are not (cohabitees).
There is no such thing as “common law marriage”. The law will not step in to award a share in a property or an income in the form of maintenance to either cohabitee when the relationship breaks down and they separate. How long they have lived with one another and their individual financial circumstances are irrelevant.
If cohabitees have children then the parent with their care (usually the mother) may be able to seek financial help in the form of a property in which to live and use as a home for herself and the children, plus a small capital (lump sum) payment and child maintenance. In the case of a property this applies only if the father has sufficient financial resources over and above his own accommodation needs. Even then the claims can only ever be brought on behalf of the children and not the mother in her own right and for her own benefit.
The law is to be found in Schedule 1 to the Children Act, 1989 and, in such cases, the home will either be acquired on trust, or by means of a long lease, for the mother and children to occupy for a pre-determined period. The legal title remains with the father. As and when the children no longer need it, i.e. when they finish in full-time education (usually after a first degree course), the property reverts to the father potentially rendering the mother homeless, or even bringing her into conflict with her own children if he decides to make over the property to them, perhaps as part of his tax planning arrangements. The better course might be to allow the mother to occupy it for so long as she wishes to do so under some form of life tenancy but there is no compunction on the father to allow any such arrangement.
If a couple buy a property in joint names, then in the absence of any discussions between them or indication as to how they wish to hold their shares, the law will fix them with a 50/50 interest. Each can specify a different percentage split where for example, one has contributed more, perhaps by way of a deposit when the property is purchased, but too few people are advised to spell out their respective interests in which they will hold the property, at the time of purchase, so the likelihood is that it will be held in equal shares in joint names.
Worse is the position of a cohabitee where the property is owned in the sole name of the other. He or she may pay half of the family outgoings but that may not be enough to acquire a proprietary interest, so if the relationship breaks down, he or she may come away with nothing. A judge can attribute or vary the shares in a property but clear evidence of intention and/or financial contribution will be needed and the Appeal Courts have been quick to correct any over generous assessment especially in favour of the non-owning party.
Contrast the position with the married family where the spouses acquire rights the minute they marry under the provisions of the Matrimonial Causes Act, 1973, in relation to the joint ownership and division of the matrimonial home and other assets and income.
So what’s to be done? First, cohabitees must instruct their solicitor/conveyancer as to the shares in which they want to own their home, be it 50/50 or in unequal shares by reason of one of them having paid the deposit, and/or making a higher contribution to the monthly mortgage payments, so that the position is properly recorded at the Land Registry. As time goes by and circumstances change perhaps with the arrival of children, that original agreement can be varied and the position updated at the Land Registry.
Cohabitation contracts which set out and define the financial and other arrangements by which an unmarried couple lives and what will happen if the relationship breaks down — rather like a Prenuptial Agreement — are becoming increasingly popular. Such a contract may also include other provisions referable to the decisions a couple makes as to possible financial priorities, goals and objectives, etc. They will be binding (absent any public policy considerations) and can be varied subsequently, by agreement following, for example, a change of circumstances such as one party giving up work to look after the children, unemployment or illness, etc.
Otherwise, only a substantive change in the law will give financial protection to cohabitees at the end of the relationship. England and Wales is by no means alone
in maintaining such a significant distinction between the married and unmarried family, but since 2009 in Australia, former partners (who may be same sex partners), who had a relationship as a couple living together on a genuine domestic basis for at least two years, or who had a child together and who also comply with other “gateway” criteria, can apply to a court to “have financial matters determined in the same way as married couples ”.
On 12 December 2014, a Private Members’ Bill sponsored by Lord Marks — the Cohabitation Rights Bill — had its second reading in the House of Lords. The proposal is that it does not equate cohabitation with marriage but its aim is to “address economic unfairness at the end of a relationship that has enriched one party and impoverished the other in a way that demands redress”.
Post the Brexit vote, it has next to no chance of becoming law but as and when our Parliamentary draftsmen work their way through the mountain of statutes and regulations that will require amendment as we exit the European Union, perhaps reform could find its way into the redrafting of our Children and Family Law Acts along the lines of the Australian model.
Jane Keir specialises in complex financial cases, pre- and postnuptial agreements and arrangements regarding children. In January 2016, she was named as one of the Top Ten family law solicitors for private children cases by Citywealth. She appears in the Spear’s Top 50 Family Lawyers and Citywealth Leaders List.