The “Common Law Spouse” and Cohabitation

Cohabiting couples

With cohabiting couples the fastest growing family type in England and Wales, the rights and responsibilities surrounding cohabitation are of growing importance to couples who are (or are looking to) cohabit.

There are approximately 3.3m cohabiting opposite-sex couples in England and Wales at present. This is almost double the number recorded 15 years ago.

There are a number of common misconceptions in respect of the legal position, status and remedies available to cohabitants. Perhaps the most prevalent of these is the concept of the “common law spouse”.

The myth goes that after a qualifying period of cohabitation (usually thought to be either 2 or 5 years) cohabitants acquire the rights and responsibilities of marriage in the eyes of the law.

However, this is not the case and is very misleading as to the reality of the legal position.

Definitions within legislation

Some of the confusion may be linked to definitions within legislation, which often refers to cohabitants as those “living together as a married couple” or “as husband and wife” (for example, within the Child Support Act 1991, the Inheritance (Provision for Family and Dependants) Act 1975 and the Family Law Act 1996). However, this refers to the closeness of the relationship between the parties and is not reflective of the rights acquired by cohabitants.

In fact, cohabitants have very limited remedies available to them upon the breakdown of their relationship. In terms of dealing with the family home, claims in respect of the shares in the property and sale of the property where parties are not in agreement are dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (commonly referred to as TOLATA).

TOLATA claims are governed by the Civil Procedure Rules 1998, rather than the Family Procedure Rules 2010 and this means that there are sanctions that can be applied in the event of a party not complying with court directions/timescales and there will be costs risks involved in litigation.

Claims in respect of children can also be made under Schedule 1 of the Children Act 1989, which can include capital provision or periodical payments for the benefit of children.

Whilst such claims can be made for the benefit of a child, this is obviously only applicable where there is a child of the family to be considered (and even then, there are then a number of factors to be taken into consideration when making such a claim and it will not be appropriate in every case with a child).

Child maintenance in the main is governed by the Child Maintenance Service, save for in certain circumstances.

Some cohabitants live as though they were married or civil partners, making life choices together, such as which party might be the breadwinner and whether the other should be a homemaker and care for any children. Whilst both roles are taken into consideration when determining financial settlement within divorce cases (which can lead to ongoing maintenance or division of other financial assets), the court cannot order spousal maintenance in a cohabitation scenario.

The court does not have the ability to divide capital, income or pensions as it would in a divorce case for cohabiting couples. Resolution (which is an organisation made up of family lawyers and other professionals) has petitioned the government to bring in new legislation to change the somewhat vulnerable position of cohabitants and to try and ensure more transparency (and less legal myth) surrounding this area.

However, in the meantime there are still things that can be done by cohabitants in order to try and protect their position.

1. Make decisions and have discussions before purchasing a property

   Whilst conveyancers will explain the different ways of holding a property if you are purchasing a joint property and will almost certainly question the source of funds for a property purchase, they will not be able to advise you on your individual interest in the property and how best to protect this.

   There can be misunderstandings amongst parties as to exactly what was intended. Therefore, in the first instance it is beneficial for you to discuss matters with your partner before either of you make a considerable financial investment in a property.

   What do you both intend in terms of how the property is held? How is it being funded? How would sale proceeds be divided if there was a sale? How would you like the property to be dealt with upon either of your deaths?

2. Seek advice

   It is possible in an area mired with legal myths that you may not be aware of the implications of certain documents in the event that the relationship was to breakdown.

   Especially in circumstances where you are paying a substantial deposit or are not being named on the title (for example due to a low mortgage raising capacity), you should take advice as to your position in the event that the relationship breaks down.

   A family solicitor will also inform you of the options in respect of the documentation that you may wish to enter into in order to regulate your cohabitation or record your share in the property.

3. Ensure that agreements are properly documented

   Even in the event that you have not taken legal advice, it is important to make a record of anything agreed between you. Often the easiest way of ensuring that there is no dispute about your intentions is to enter into a formal legal agreement (with both parties having the benefit of legal advice).

   The position as set out in such documentation is the default position in TOLATA cases where there is no other contradictory evidence. Documents such as Declarations of Trust and Cohabitation Agreements (or Living Together Agreements) will almost certainly be upheld by the court (except in cases of mistake or fraud), save for in circumstances where they have been succeeded by further written trust documentation.

   Such documents can be entered into by any joint owners or cohabitants and you do not need to have created a “family unit” for such documents to be beneficial to you.

Clear documentation and records

Having clear documentation/records also prevents misunderstandings or reliance upon imperfect memories of what was agreed at the time (as it can be very difficult to determine exactly what was said between you after a considerable passage of time) and is set out in a way that should be relatively simple for a lawyer to implement upon separation.

Living Together Agreements in particular can deal with more than simply how the property is dealt with upon a sale. They can include items such as how you are going to manage finances (and who is going to pay for what) to prevent any awkward conversations down the road…

Visit our “Family” page on our website to find other useful literature.

In the meantime if you have any queries on the content of this blog please email me.