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Insights - 25/01/2022

COHABITATION Q&A – WHAT YOU NEED TO KNOW ABOUT YOUR RIGHTS WHEN COHABITING

Family law Partner, Deborah Prance, answers your questions around cohabiting and your rights if a relationship breaks down:

“I have been living with my partner for a long time and I believe that we are viewed in law as “common law man and wife”. Is this correct?”
Unfortunately, the fact that you have been living together for a long time does not, in itself, give you any legal rights.

“Does that mean that if we were to separate, I would not be able to pursue any financial claims against my partner?”
This depends on whether you own property together or if you have children together. If neither of those apply, you will not have any claims which you can pursue purely by virtue of having lived together a long time.

“Although the property in which we have been living was purchased in my partner’s name, I have helped pay the mortgage. Doesn’t this give me a claim over the property?”
That depends on whether there was either an express, implied or imputed common intention that the property should be jointly owned. For there to be an express intention, there must be evidence of this in the form of discussions between you about the intended ownership or written evidence in some form.

For an intention to jointly own the property to be inferred or imputed, the course of dealing between you must suggest this.

The onus is on the person asserting an interest in the property to produce the relevant evidence.

“What is the position if I cannot show that I have an interest in the property by virtue of having made financial contributions or in other ways, but we have children together?”
If the property provides a home for the children and is not surplus to the needs of the children and the parent who is the primary carer, an application can be made for a transfer of the property to the primary carer, if he or she does not already own it. Alternatively, an application can be made for sufficient capital to be made available to enable the primary carer to house themselves and the children. Whether such an order is made depends on the financial resources of both parties, their respective needs and other factors. This is known as a claim for financial provision under Schedule 1 of the Children Act 1989.

Under this Act, it is also possible to apply for other financial provision such as periodical payments or maintenance over and above what would be payable as child maintenance if an application were made to the Child Maintenance Service.

“If the property were transferred to me following a claim under Schedule 1 of the Children Act 1989, would my partner still have an interest in it?”
Yes. It is likely that it would revert to your partner once the youngest child reached the age of 18 or ceased full-time secondary education.

“What is the position if my partner were to die without making any provision for me or the children?”
You would be entitled to make claim under the Inheritance (Provision for Family and Dependents) Act 1975. It is not necessary for you to show that you were financially dependent on your partner if you lived together continuously for at least 2 years before they died.

“If we were to marry, would this give me greater rights if we were then to go our separate ways?”
Most certainly. There are a variety of financial claims which you could make for yourself and any children which would be determined according to a range of factors including your respective needs and resources. The length of the marriage is also a factor which is taken into account and this can include the period that you cohabited before you married, if there was no break between the periods of cohabitation and marriage.

If you have any questions on your rights when cohabiting, or any matters relating to Family Law, please do not hesitate to contact our Family team.


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