The common misconceptions of cohabitation

During Cohabitation Awareness Week, Resolution Accredited Cohabitation specialist James Davies looks at the common misconceptions associated with this niche area.

Cohabitation – seven common misconceptions:

1. The common law marriage.

Despite being the understanding of 46% of the population, there is no such thing.  A settled cohabiting relationship with all the appearance and hallmarks of a marriage will never become one, no matter how long the relationship or even if there are children

2.  The financial outcome on relationship breakdown will be the same as for a married couple.

Again, sadly completely wrong.  A married couple’s entitlements on divorce will be a fair outcome for each party based on a list of factors.  These include the parties’ resources, needs, contributions to the relationship, standard of living, ages, length of relationship, the implications of any disability and in rare cases their behaviour.  By contrast, on the breakdown of a cohabiting relationship the parties will broadly be entitled to the shares of the assets which the parties agreed they each would have.  Even then, if the asset is owned in one party’s name, the agreement with the other will have to be relied upon by them to their, usually financial, detriment to have any entitlement to the asset.  If there is no agreement, there is no share.  If one party, for instance, did not agree to share their house with the other, then even if they lived together for 15, 20 or even 40 years they will emerge with nothing.

3.  The presence of children changes everything.

Well, not quite.  The presence of children will not increase their, usually, mother’s entitlement.  The law will step in to protect the children’s financial welfare as against one or other of their parents but step children do not attract this protection.  Even where the children are the biological children of both parties, the law will allow assets to transfer to benefit them only during their minority.  When they reach majority the transferred asset or share of the asset returns to the parent “owner.”  Lump sums can be paid, but only to benefit the children, and so only for a child benefitting purpose.

4.  I can claim maintenance against my long term partner, together with a share of his pension and a share of his farm/business/holiday home.

Again, unfortunately not.  There is no power to order maintenance from one cohabiting partner to another.  Child support can ordered by the Child Maintenance Service for the benefit of children according to a statutory formula.  The courts can only consider ordering additional child support above the Child Maintenance Service entitlement in cases where the CMS has calculated that the wealthy parent earns more than £156,000 per annum gross.  They can also order child support in cases where one party or child is abroad, a child is disabled, or for school fees and in other very limited circumstances.  Even so, this is likely to be at the CMS level.  The partner themselves cannot receive ongoing income payments akin to maintenance.

As for pensions, the legal ability to share pensions on relationship breakdown is confined to marriages and civil partnerships.  The other assets of the wealthy party like his farm or his business follow the same rules of needing an agreement that they would be shared as discussed above.

5.  If my relationship breaks down, the law will not let an unfairness arise; it won’t see me in poverty.

I wish this were true…but it isn’t.  Fairness really does not come into this area of law in the same way.  In very rare cases a court may resort to granting a remedy of “proprietary estoppel.”   This is the closest power the court has to prevent unfairness, but it is a high hurdle to clear.  This might apply over, say, a disputed piece of land but the rules are strict.  The principle will apply only in favour of a person given a clear assurance that they will acquire a right over the property.  Even then they will have to reasonably rely on that assurance, they must act substantially to their detriment on the strength of it and it would have to be unconscionable to allow the owner to go back on it.  This is extremely rare and, for instance, might occur in respect of a farm where a farmhand was promised it on the owner’s death and as a consequence spent their entire life looking after the farm for little reasonable reward.

As for poverty, the court is not balancing needs and a party’s ability to meet them from resources here.  That is for married couples only.  The courts instead will stick slavishly to the very narrow principles above.  If poverty ensues there is little the courts can do to avoid it, even if they wanted to.

6.  I put more money in to our home together, so I will get more out?

Not necessarily.  Again it depends if you agreed that you would when you bought the property.  In this respect the way you buy the property according to the legal conveyancing documents is hugely important.  Make sure your conveyancing solicitor is aware of the differing sums you put in and that you expect to receive them back if things should go awry.  You should also be aware that there is a legal presumption that property held in parties’ joint names is intended to be shared equally between them.  Likewise, a property held in one partner’s sole name is presumed to belong only to them.  Evidence will be needed to remove those presumptions.

7.  I’m doomed whatever I do.  It seems I cannot avoid unfairness.

Thankfully this is also untrue.  The essence of law for unmarried cohabiting couples is agreement.  So, we would always recommend talking about your concerns with each other when you decide to move in together.  If you agree on what the outcome should be if the relationship should break down you can prepare a cohabitation or ‘living together’ agreement to cover most eventualities or a declaration of trust to make it clear just who owns what part of any property.  In the event of a relationship breakdown these will be invaluable.

Legal Director James Davies is the only solicitor in Oxford to hold the Cohabitation accreditation from leading family law organisation Resolution. Contact our cohabitation experts for specialist advice in this area.