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Divorce law blog

The rights of the cohabitant: the unsettling reality

15/02/2013   By: Andrew Moore

What the vast majority of cohabitants will not be aware of is the huge difference between the financial rights they have when their relationship breaks down as compared to married couples. Those cohabitants who cling to the idea that they are in a “common law marriage” and will be “ok”, need to know that common law marriages have not existed since 1753 and the laws that apply to them on separation can be very unfair indeed. 

Even after a very long relationship, if you are an unmarried cohabitant, at best you will receive a share of the family home (and/or other properties depending on the facts of the case) but only if you can conquer high property law hurdles to prove that you have an interest in the property. The recently publicised case of Pamela Curran and Brian Collins demonstrates the injustice in the law for cohabitants. After a 30 year relationship, during which Ms Curran supported her partner’s business and acted in everyway as a wife, she walked away with nothing. She is appealing that decision and we will have to wait and see if she is successful in persuading the court she is entitled to something. 

The current government has rejected reform of the law in this area, leaving millions of cohabitants at risk of being penniless when their relationship fails. According to the 2011 census, the number of married people in the UK fell by 200,000 whilst the number of cohabitants increased by almost half – they may be young couples cohabiting before getting married, they may be couples who have chosen not to (or who cannot) marry or one or both of the couple may have already gone through a divorce and simply do not want to go down that road again. Whatever the situation, it is more important than ever before that cohabitants get to grips with the law as it affects them. Here are few examples of the differences between the rights of married couples and unmarried cohabitants when relationships come to an end. 

 

The family home
 

Married couples

Cohabitants

The starting point is that, irrespective of the length of marriage, the family home is divided equally. Factors such as one party bringing the property into the marriage and/or the respective housing needs of the couple and any children does mean that the division of the property can be altered depending upon the circumstances. However, if one party needs a share of the property, the court has sufficient power to make sure that they receive it. There is more information about family homes on divorce on our main site.

If the property is in the sole name of one of the couple, for example the man, it will be for the woman to prove that she has some “beneficial interest” in the property by virtue of her paying some money towards it (either in terms of its purchase, or towards the mortgage) or that she has been promised an interest in it and she has relied on that promise to her detriment. This is a difficult and expensive argument to run and requires legal advice.


Other assets
 

Married couples

Cohabitants

It does not matter in whose name assets are held. All of the assets are part of the “pot” which is divided to achieve a fair settlement, with the primary focus being on the parties’ needs.

Cohabitants have no right to the assets of their ex-partner whether that be bank accounts, shares in companies or vehicles.


 

Maintenance
 

Married couples

Cohabitants

A court can award maintenance from one of the parties of the marriage to the other to ensure their needs are met. The maintenance can be paid for a set period of time to ensure that the receiving party can adapt and become self sufficient post-divorce. Maintenance can be paid for “joint lives” – this means until the receiving party remarries, either the payer or recipient of maintenance dies or the court makes a further order. See our section on maintenance on divorce for more information

The courts do not have the power to order maintenance under any circumstances.


 

Pensions
 

Married couples

Cohabitants

It does not matter in whose name assets are held. All of the assets are part of the “pot” which is divided to achieve a fair settlement, with the primary focus being on the parties’ needs.

Cohabitants have no right to the assets of their ex-partner whether that be bank accounts, shares in companies or vehicles.


 

Financial assistance for children
 

Married couples

Cohabitants

The court can make a wide range of orders relating to the children, similar to those available to the couples themselves.

This is the only instance when the court can provide some additional financial assistance. For example, if the mother has day-to-day care of the children, but needs financial help to house them and herself, the court can order that the father provide a suitable property to the mother. However, the mother cannot live in the property indefinitely; the property will be returned to the father when the youngest child has turned 18. This will happen irrespective of whether the mother has somewhere else to live. 

Child maintenance will usually be calculated using the applicable formulas used by the Child Support Agency. The court has the power to award higher child maintenance but only if the paying party earns over £104,000 net per year. The court can also award other incidental expenses such as school fees. 


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