General Principles and Misconceptions

  • Cohabitation and common law marriages - are they the same thing?
  • My former partner and I were together in his house for eight years. We surely just divide everything 50/50 don't we?
  • It cannot be right that the law treats cohabitees less favourably than married couples. It is 2010 after all.
  • So help me understand this. What is the Act of Parliament that makes everything far simpler?
  • Will there be any change to this complicated area of law and an Act of Parliament?

The term cohabitation applies to men and women who choose to live together as a couple without entering into the formalities of marriage and also to same sex couples who decide not to enter a civil partnership. When your cohabitation ends, surprisingly neither you nor your partner have any legal duty to provide the other with any financial support. However, you may both want to consider what should happen in relation to the ownership of your home, its contents and any other assets either before or during the time that you live together.

Just living in your partner's house (i.e. where the legal title/ownership is in their sole name) does not automatically entitle you to a share in it regardless of how long that you have lived there and despite that fact that you have lived as husband and wife. You may, nevertheless, have a claim against the property if you have made a financial contribution directly towards its purchase or the mortgage; completed some significant work on the property to enhance its value or were made a promise of shared ownership. However, the process you have to go through to prove that you have acquired what is called beneficial interest i.e. a share of the proceeds of sale, is not without its complications. This is because, unlike with married couples where the Matrimonial Causes Act 1973 applies, the Government have not yet legislated to provide a complete set of principles which apply on the breakdown of a non-marital relationship. If a former cohabitee wishes to claim an interest in their ex-partner's property, they must make the application under the Trusts of Land and Appointment of Trustees Act 1996 (which is not specific to cohabitees) and rely on case law to show that a trust has been established by virtue of which they are entitled to a share in the property.

Former cohabitees, no matter how long they have been living as husband and wife, are not afforded the same rights on the breakdown of their relationship as those which arise on divorce. The law does not recognise the somewhat meaningless phrase 'common law wife/husband' that is mistakenly used by the public at large.

It follows that living together rather than marrying can be a financially crippling for a dependent cohabitee in the event of the relationship breaking down. A Judge does not have the power to order a former cohabitee to pay maintenance to their ex-partner for their own benefit. Likewise, a Judge does not have the power to order the payment of lump sums of money, pension sharing, or other remedies available to divorcing couples under the Matrimonial Causes Act 1973. The children of such a relationship may be financially disadvantaged although the CMEC (formerly the Child Support Agency) can be used if maintenance cannot be recovered voluntarily and applications may be made on behalf of the children under Schedule One of the Children Act 1989.

Although a Law Commission report has suggested that legislation should be introduced to provide co-habiting couples with greater financial security on separation, these recommendations have not been accepted no doubt due to the political preference to encourage either a formal act of marriage or a civil partnership. It is therefore the case that cohabitees whose relationship comes to an end will have to continue to manoeuvre their way through a patchwork of sometimes archaic legal rules, most of which were never designed for, and are not suited to, what are modern family relationships.

If a relationship of a cohabiting couple breaks down, the only financial claims arising can be summarised as follows:-

1. Disputes in Respect of the Family Home and other Property

  • So what if my partner's house is in his sole name. I must be entitled to a fair share.
  • Resulting Trust and Constructive Trusts – I have never heard of these. Surely, we just use the same criteria as if we were married?
  • Concerning my financial entitlement, there must be a set percentage based upon how long we were together?
  • I used an unqualified conveyancing clerk who was based so far away that I never even met her. The procedures used were very formulaic and the clerk could not really answer questions. Shouldn't they have told me all about a Declaration of Trust?

The court may need to consider how a property is legally owned between the cohabiting couple and the Judge can resolve disputes between former cohabitees in respect of the ownership of property.

Where a property is owned in joint names as joint tenants (i.e. where the property passes automatically to the other party on death), the usual starting point will be that it is owned in equal shares regardless of the financial contributions that each party has made because they chose of their own volition to hold the title of the property in that particular way. The position will depend entirely upon documents signed at the time of purchasing the property and the position will change if there was misrepresentation, undue influence or a mistake. The Judge will also be keen to see that both parties had independent legal advice at the time of the purchase if unequal contributions towards the price were made.

Where the property is owned by one person only, complex legal arguments may arise if the other cohabitee upon separation wishes to establish a beneficial interest in that property or indeed any other relevant properties.

Firstly, they may be able to establish a 'Resulting Trust' arising from financial contributions that they have made to that property, such as payment towards the deposit or paying for improvements to enhance the value of the property.

Secondly, as an alternative, it may be possible for them to establish a 'Constructive Trust' arising from promises made (in writing or orally) to them by the person who owns the property e.g. that they would share it equally and also the fact that they had relied upon those promises to their subsequent detriment.

Other legal doctrines such as that of Proprietary Estoppel may arise.

Specialist advice from an experienced solicitor will be required in relation to this complicated area of law and at Blackdown Family Law Solicitors; we have considerable experience of helping clients to establish an interest in property when their relationship with their former cohabitee has broken down.

It is, of course, important and indeed, preferable that the ownership of property is agreed before the purchase takes place, and that this is reflected at the time of that purchase in an appropriately worded legal document such as a declaration of trust. It is always wise to choose an experienced conveyancing solicitor in this regard as opposed to a distant organisation of the type which can often be recommended estate agents.

In addition, at Blackdown Family Law Solicitors, we can assist by preparing a Cohabitation Agreement to set out the financial arrangements for what should happen on the breakdown of a relationship, including what should happen to any property. Further details about Cohabitation Agreements can be found elsewhere in this website.

2. Child Support and School Fees

An application can be made to the CMEC (formerly the Child Support Agency) concerning child maintenance in most instances and occasionally via your solicitor. See our separate website section for details, Child Support, School Fees and Financial Claims for Children.

Payment of school fees is outside the jurisdiction of the CMEC but an application can be made by your solicitor to the court under Schedule One of the Children Act 1989 and at Blackdown Family Law Solicitors, we can advise you about this.

3. Financial Provision & Claims for Additional Support under Schedule One of the Children Act 1989

  • We lived together for 10 years, we had a son together and you say that I have no financial claims in my own right. What of claims on behalf of my son surely he must have some entitlement?
  • He has thrown us out. My son and I need a house desperately. He is wealthy and surely something can be done?
  • My solicitor says that I may have to let my former partner have one of our investment properties to live in with our daughter. Do I ever get some or all of it back, and if so when?

In order to prevent the children of former cohabitees from being financially disadvantaged on their parent's separation, claims can be brought on their behalf by the parent with whom they will continue to reside. For example, if an unmarried mother does not have sufficient money to re-house herself in either a freehold or a rented property, she may be able to apply to the other parent and if not agreed, then to the court for provision of a property or capital nature under the Children Act. The most common outcome for this type of application will be for the Judge to order that the absent parent provides or purchases a property to be held in trust for the children until a specified event occurs. This is most likely to be when the youngest child reaches the age of 18 or finishes their tertiary education at which time, the property would then be sold and the proceeds would revert to the absent parent. It and will never be the personal property of the parent with care, who has effectively a life interest in that property until such time as the particular event occurs. If that parent does not have an interest in the property by virtue of a resulting or a constructive trust, then they do not acquire personal financial rights by way of their children's entitlement.

Applications for financial support under Schedule One of the Children Act 1989 are relatively uncommon but nevertheless can be of great value to former cohabitees who are also the parent with care of the children.

In limited circumstances, the court may also order the payment of a lump sum to meet specific capital requirements of the children, again under Schedule One of the said Act. Examples would be for capital outlay or an income stream in connection with a projected self employment project or to buy a car which is needed to provide transport to work.

At Blackdown Family Law Solicitors, we have wide experience of dealing with Schedule One applications and can advise upon your individual case circumstances.


John Turner, the Principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with separation on a daily basis for over 22 years. He will advise you on the most cost effective and efficient way of proceeding with your separation taking into account all of the circumstances of your case. He understands that separation can be an emotional and testing time for all those involved and is there to help shoulder the burden for you so that you can begin the process of rebuilding your life.

Areas of Family Law Work
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