Cohabitation law –The present position

16 Nov 2018

Part of the Dispute Resolution Briefing Autumn edition, various Trethowans contributors have come together to provide insight into their specialist areas of Resolution.

The legal issues surrounding cohabiting couples have been problematic for many years. Historically disputes tended to be confined more to younger pre-married couples, or what used to be known as, “common law husbands and wives”. However, unmarried cohabiting couples have been on the rise for many years and of course a number will have children. A recent ONS statistical bulletin entitled “Families and households” found 3.3m couples in the UK had chosen to live together without marriage or a civil partnership. This is probably set to rise.

In straightforward cases cohabitation may not have any adverse impact on property rights during the existence of a relationship. Jointly owned homes will normally express how couples wish to hold their interest, which should prevent any legal wrangling over ownership and shares in the event the relationship ends. Having said that, the presence of children will impact on what is appropriate in many cases, and of course over time, one parent may decide to work less than the other or even give up work. Outside of marriage the courts have no power to make financial provision in the form of transfers of property, lump sum payments or maintenance as between property owners. There are limited powers under the Trusts of land and appointment of Trustees Act 1996. Financial provision for a child can be achieved under Schedule 1 Children Act 1989, but that is not widely used and tends not always to solve the immediate problem.

Cohabitation also poses problems on death, particularly in unexpected cases. Many people still do not make Wills, or do not update them regularly, and in those circumstances a cohabitee may be left without any provision, causing them to enter into difficult claims under the Inheritance (Provision for Family and Dependents) Act 1975. In the recent Court of Appeal case of Martin v Williams [2017] it became clear that whilst the courts are willing to embrace modern times, they cannot change the substantive law and the financial provision available to cohabiting couples still trails someway behind married couples.

It is open to, and sensible for, cohabiting couples to ensure their affairs are in order so that neither of them are disadvantaged by deciding not to marry. Owning property jointly with specified shares and making Wills, to be reviewed and updated regularly, goes a long way to avoid difficult decisions during lifetime or on death.

Unfortunately what remains a particularly problematic area is when cohabiting couples live in a property that is only owned by one party. That can of course arise in different ways. One person may move in with the other when a relationship starts. Alternatively, a property may be bought during the relationship, but for some reason only in the name of one person. The law remains a fairly blunt instrument when it comes to disputes following the breakdown of a relationship (or even on death). There is no statutory framework and instead the parties have to fall back on trust law built up over the past 50 years. It is a very difficult topic and despite a number of high level cases in the past few years including Stack v Dowden [2007] and Jones v Kernott [2011] the law remains in places quite uncertain. Contributions towards the purchase price or significant payments towards the mortgage, or other capital payments, can all be treated as evidence that the parties intended the non-owning person should have a beneficial share in the property, but this can always be defeated by a contrary intention. So often parties will disagree about what contributions were intended to mean and cover.

A few years ago it was hoped that the law had developed so that non-financial contributions could be taken into account, as after all, many couples will decide to have children where perhaps the mother (or father) will not work and look after the house and family. However, there is as yet no legal authority that gives firm backing to such contributions leading to a beneficial interest. The position is of course to be contrasted with the law on married couples which has embraced modern times.

One would think that law reform was on its way, but there is nothing concrete in the pipeline. In 2007 the Law Commission recommended legislative reform, but nothing followed. There was even a Cohabitation Rights Bill in 2016, but that has not progressed.

Sometimes it pays to obtain legal advice at an early stage, possibly when couples are contemplating living together, but in practice it is often after the event that people take legal advice. Careful analysis of the evidence and appropriate representation is then the key to the protection of rights and often a settlement can be negotiated. Occasionally, it can be necessary to bring court proceedings, but that is only done when a clear risk assessment has been undertaken and there is really no alternative.

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Our Family Law solicitors are among the best in the South. If you have a legal matter that requires the expertise of one of our cohabitation lawyerscontact us today on 0800 2800 421. We have law offices in SalisburySouthamptonBournemouthPoole and Winchester to meet your requirements.