4.1 The Law relating to Cohabits

It is a popular misconception that after a man and a woman have lived together, unmarried, as partners for a certain length of time, their relationship acquires some extra legal status, that they become “common law man and wife”, and that, thereafter, if they separate there will have to be a division of their assets (and perhaps even the payment of maintenance) along similar lines to those which apply to married couples who separate or divorce.

In fact, nothing could be further from the truth.

For this reason, people intending to enter into a cohabitation relationship short of marriage would be very well advised to plan ahead and to think about what they would want to happen (financially) between them if at some point their relationship were to break down. This is not, of course, what most intending couples have in mind when they embark on a living together relationship – it is hardly a romantic step to take – but it can avoid more upsetting problems later on.

Cohabiting couples can enter into a Deed which will be legally binding upon them, spelling out their wishes for the financial arrangements in the event of their relationship ending. Couples entering into marriage can make a pre-nuptial contract (often in a Deed) – but this is not the final word on the matter and is not, ultimately, binding on a Court if a divorce takes place.

A Cohabitation Deed (or living together agreement) will, by contrast, be legally binding. If, though, the couple were later to marry, then on divorce the Court could choose to impose a different resolution from that envisaged in the Deed.

4.1.1 Maintenance

When a cohabitation relationship breaks down there is no duty on either party to pay maintenance for the support of the other. This holds good no matter how long the relationship has lasted and no matter how great the difference between the earnings of the parties.

4.1.2 The House

This is often the most valuable asset within a relationship. What happens to it on the ending of a living together relationship depends on the facts of each case and the application of some very complicated legal provisions.

The first and most important point is that one cohabitant does not, simply by living with their partner, acquire any rights of ownership of the house which they would not otherwise have had – no matter how long the relationship has lasted.

The first question to ask is: in whose name(s) does the legal ownership of the property stand (in the Title Deeds)? If the deeds make clear e.g., that both parties own the property and that their beneficial interests in it are declared (e.g. 50.50), then that will be the final word on the matter.

But, if the Title Deeds are not clear on this point, then you have to turn to the complex area of the law of trusts to work out who is entitled to what share, if any, of the house.

There are two main types of trust to consider:-

(i) a Constructive Trust and
(ii) a Resulting Trust.

So, looking at Constructive Trusts first – the claimant will need to prove two points to establish entitlement under such a trust i.e.:-

(a) that there was a COMMON intention (i.e. that BOTH parties intended) that the claimant should have a share and

(b) that in reliance on that common intention the claimant acted in some material way to his detriment.

N.B. The “common intention” might have been communicated expressly between the parties in their discussions, or can be inferred by the Court from an examination of their conduct.

As far as Resulting Trusts are concerned – these are rather simpler. No “common intention” need exist. Instead, if the claimant has made a direct financial contribution towards the purchase of the house, then the starting point is that the claimant will be entitled to a share of the house. This presumption, though, can be overturned in suitable cases when all the facts and the history of the case are examined.

4.1.3 Child Maintenance

The mere fact that the parents of a child are not married to each other does not relieve the parents from their duty to support their natural children financially.

On a relationship breakdown, the parent with care of the child is perfectly entitled to ask the “absent” parent for financial help in supporting their joint child and, if he or she refuses to make any contribution, or a reasonable contribution, then the parent with care can turn to the Child Support Agency for help.

For more information on this, see Section 3.3.5.