For more and more couples, living together without marrying is their fairy-tale ‘happy ending’, but the often mentioned concept of a ‘common law marriage’ is just that – fiction. There is no such thing as a common law partner, regardless of the length of their cohabitation. And unlike upon the breakdown of a marriage, the Court has no power to divide finances or property in accordance with ‘fairness’ when a cohabiting couple separate. This becomes especially complex and problematic after a couples’ finances have become intermingled during their relationship.
People are often left with little legal protection because the property they viewed as ‘theirs’ ultimately only belongs to one of them. For instance, Jack and Jill live together in a house that is in Jack’s sole name. They split the cost equally, but Jack takes responsibility for paying the mortgage every month whilst Jill pays for the utility bills and food. As far as the law is concerned, Jill does not own the house that they occupy as a couple and therefore has no claim over any of the equity and proving that she should would be especially difficult. This is true even if they each contribute the same amount every month.
Likewise, if both Jack and Jill’s names were on the title to the house but Jill contributed 75% of the deposit and 75% of all payments in relation to the house thereafter, the presumption at law would still be that they own the house in equal shares. Jill’s only option to assert that her share should be 75% is to use the unpredictable law of Trusts and Land, which were not designed to deal specifically with disputes over family homes meaning they are often unhelpful.
If you are in this situation, don’t panic! The law will not change overnight but there are ways to protect yourself in the meantime:
A declaration of trust can detail how your house is owned, i.e. in 50/50 shares or otherwise,
A cohabitation agreement can set out your intentions in relation to all of your assets and what would happen in the event of your separation.
Regardless of if you view that cohabitees should have similar legal protection to married couples, they should at least be aware of the inadequacy of the law in this area so that they can protect themselves. This is the purpose of Cohabitation Awareness Week; to ensure those effected have some knowledge of their legal rights so that they can take action if they wish. So, how can you help? You can start by simply informing your friends and family who fall into this category of the uncertainty in this area of law so that they can protect themselves and their ‘happy ending’. You can also join Resolution’s call to the Government to review laws relating to cohabiting couples, which effect one in five families in the UK, a number which is only likely to increase in the future. For further information visit www.bit.ly/CohabAware