Separating after Cohabitation – ‘But they are my common law spouse!’

More and more couples are choosing to live together outside of marriage – many because marriage is just not for them, others because whilst marriage may be on the horizon at some point, it’s just not a priority.  It is hard to deny that relationships have very much moved on over the last 50 years, with statistics telling us that by 2031 1 in 4 couples will be cohabiting outside of marriage.  Currently over half of children born are born outside of marriage.

It is therefore surprising to many that the legal protections offered to those who cohabit, even where there are children involved, are significantly different to those who are separating after a divorce. Many people still believe the myth that by cohabiting you will become each other’s ‘common law’ husband/wife and sadly that is simply not true. There is no legal entitlement gained by either party simply because you have been living together.

If you are married and divorce the Court will look at your financial situation from a needs basis – what there is in the ‘matrimonial pot’ and how it can be shared in a way that is both fair and supports both the needs of the husband and wife, as well as the children of the family.  Contributions are taken into account, but these are not simply in terms of financial contributions – it includes the physical and emotional contributions to running the home, looking after the children etc and the financial implications on the ‘stay at home’ parent (or part-time working parent) on their realistic future earning capacity.  Matters are complex and detailed, with a view to making things as fair as they can be.

With a cohabiting couple, even where there are children of that relationship, the Court deals with things very differently.  Financial matters are very much dealt with in relation to Trust and Land Law and if one party owns the property, and the other does not, no matter how long they lived in the property, the non-owning party may well be looking at receiving very little, if anything, from the sale of that home.  That is even the case where the non-owning party is caring for the children.

This can lead to numerous unmarried parents and children being left essentially homeless after separation, where had they been married, the situation may be significantly different; particularly where one party owns the family home in their name (perhaps they are working full time and the other parent is caring for the children full time).  This can be a particular issue where domestic abuse is prevalent in the relationship, particularly where the domestic abuse is in the form of financial  and coercive controlling behaviour– for example, where one party owns all of the assets, and the other is too scared to leave because they are afforded no protection – protection they would have got had they been married.  This can lead to victims remaining in abusive relationships, feeling trapped, worrying how they will provide for their children if they leave and often being told by their perpetrator that they will lose the care of their children without somewhere to live – leaving the victims petrified that they will have to hand over their children to the perpetrator, or even social care, if they dare to leave.

There are ways to attempt to protect yourself as a party to a cohabiting relationship, through clear legal agreements being put in place at any time (but preferably at the outset of the cohabitation) of both parties’ intentions, both in terms of ownership of the family home, either through Trust documents and/or through the signing of a Cohabitation Agreement that confirms what the parties intentions are regarding the property if they separate, and other issues such as the care of the children.  Keeping clear records of any monies that you have put into the property, for example byway of mortgage payments, monies for renovations etc, is important if you want to be able to show that you may have a claim.   It is also very important to seek clear independent legal advice when looking at purchasing a home with your partner, particularly if you are not married, and particularly if you have, or are planning to have, children.

Clearly there is a real and urgent need for reform in relation to this issue, and such reform is possible in the future.  If it is right that the needs of the parties and the children are at the forefront in financial proceedings arising from divorce, then how can it possibly be right that it should be any different for those who are unmarried?

However, until the law is reformed, cohabitees should be aware of the lack of protection that the current system provides them, and they would be well advised to obtain legal advice at any time, but particularly at the outset of the relationship, or when the relationship is ending.

Please do get in touch with us at Forrester Sylvester Mackett Solicitors on enquiries@fsmsolicitors.co.uk if we can be of any help.

The contents of this article are for the purposes of general awareness only. They do not constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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