Cohabitation – Am I a common law husband / wife?
We are often asked if there is a difference between common law and cohabitation. Despite the common misconception, there is no such thing in England and Wales as a common law husband or wife. The misconception sadly leaves many couples who are living together with limited rights and protection in the unfortunate event their relationship breaks down. It may also leave the financially weaker party, often a party who has given up work during the relationship to be a homemaker or to look after children, in a financially vulnerable position.
There are presently no laws in place in England and Wales that comprehensively deal with financial matters on the breakdown of a relationship for cohabitees. Instead, the laws available are broadly limited to:
- A claim around the beneficial ownership in real property under the Trusts of Land and Appointment of Trustees Act 1996 known as a ‘TOLATA’ or ‘TLATA’ claim. TOLATA claims are sometimes brought on the breakdown of a cohabiting relationship as one party owns the property, but the other party made financial contributions to that property on the understanding that they also had an interest in the property.
- Schedule 1 of the Children Act 1989. Schedule 1 is focused on making orders to ensure the needs of children (usually in their minority) are met. In these sorts of proceedings, the court can make a range of orders including that one party provide a home for the other party and the parties’ children until the children reach a certain age, or that one party pay for the private school fees for the parties’ children.
The Women and Equalities Committee ‘The rights of cohabiting partners’ report published on 4 August 2022 supported the need for changing the law in England and Wales to provide greater rights and protections for cohabitating couples, both in life and in death. Endorsing many of the recommendations made in the Law Commission Report “Cohabitation: The Financial Consequences of Relationship Breakdown” back in 2007, the Women and Equalities Committee report proposes that the law should be changed to enable courts to make financial orders on the breakdown of a relationship for cohabiting couples who:
- are living together in a joint household (and are not married or civil partners); and
- have a child together or have been living in a joint household for two years.
Cohabiting couples would have the ability to enter into an agreement to ‘opt out’ of this financial provision and to decide what they feel should happen if the relationship breaks down, subject to some exceptions. Whilst the prevailing view of both reports is that financial relief available to a cohabiting party should not be equal to that of married couples, ‘The rights of cohabiting partners’ report still represents progress towards a change in the law for the many cohabiting couples in England and Wales. However, unfortunately at this time, the Government continues to take the view that the law dealing with financial matters on the breakdown of marriage and civil partnership needs to be reformed before consideration can be turned to the introduction of the law dealing with financial matters for cohabiting couples.
So what steps can you currently take to protect yourself? There are several options available such as entering into a cohabitation agreement or executing a declaration of trust. A cohabitation agreement is a document which regulates how financial matters will be dealt with between two parties in the hopefully unlikely event the relationship breaks down.
Before living with a romantic partner, you should consider whether it would be prudent to enter into a cohabitation agreement. This is particularly important if you own property which a partner is going to move into or if you and your partner are thinking of buying a property which you will live in.
If you are unmarried and have been living with a partner in a romantic relationship that has broken down, it is important that you take advice from a specialist family lawyer about what claims may be available to you, or against you.
Should you wish to discuss either cohabitation agreements or the consequences of the breakdown in a cohabiting relationship, please contact our expert cohabitation agreement solicitors at [email protected] or 0203 709 6895.
Posted on 21.11.2022
