Divorce and Family Law

If either one or both parties have decided that there is no going back and it is determined to end the relationship there are obviously consequences. These are different depending upon whether you are married or just living together.

If you are living together but not married how do you refer to your “other half?” Do you call them your cohabitee or partner or do you use some other term? The question is relevant because not only is there no accepted word in England for your “other half” but there is no legal concept of “cohabiting”.

Many people think that they are a “common law husband” or “common law wife”. This is a term that last had any validity in 1753. The only marriages that are recognised at law are those which are recognised by virtue of the Marriage Act, of that year.

If you married and subsequently separated the parties rights with regard to each other and to any children are governed by the Matrimonial Causes Act 1973 (as amended).  If you lived together and separated there is no one law or set of rules which governs this situation. There are a number of separate issues which are all dealt with, with different sets of rules. Relevant issues are:

Maintenance for partners

Where partners live together without being married and subsequently separate then neither party has any obligation to provide maintenance for the other.

Maintenance for children

The Government have altered the method of child payment enforcement. The first phase is to encourage parents to agree. If there is no agreement, both parents will have to pay fees to assess, collect and enforce necessary payments.

Home ownership

As a rule your legal rights are governed by the declaration in the title deeds of the property. If it was bought in the sole name of one party then the other party has no rights at all unless they can prove either that they have financially contributed towards the property or that there was an implied agreement, for example, that this was going to be “our home”.

The position has theoretically been clarified by the House of Lords in Stack v. Dowden which does lay out certain guidelines as to how the property is to be divided in these circumstances. If the parties cannot agree, then a Judge will make a decision. There is a very wide discretion and consequently a great deal of uncertainty. Court proceedings are expensive.

If the property is bought in joint names then, unless there are compelling reasons which indicate otherwise, each party is entitled to an equal share. It may be specified in the deeds that the shares are held unequally. In the absence of exceptional circumstances what it says on the deeds will apply. It is essential, therefore, that when a property is being remortgaged you take proper advice as to the consequences of the remortgage and the consequences of transferring a property into joint names.

Inheritance

If you have not made a Will then property passes according to the rules of intestacy. A cohabitee does not feature in these rules and, therefore, the only protection is by making a claim under the Inheritance (Provision for Family & Dependants) Act 1975. This is only available if it can be shown:-

  • that the claiming party has been maintained wholly or partly by the deceased immediately before the death of the deceased or;
  • for a period of two years and immediately before the date when the deceased died they were living: (a) in the same household as the deceased (b) if the husband or wife of the deceased

Financial provision for children

Maintenance is dealt with as mentioned above under the Children & Families Act 2014, the court has powers to make transfers of capital either in the form of property or lump sums for the benefit of any children. The factors that the courts consider do not include the applicant or claimants contribution because it is an award for the child. Any award which has been limited for only so long as they are children or dependants. It would not be common for an order to be made in these circumstances where the means of the parties are modest. In “big money” cases substantial provision has been made for the carer of the children.

 

7 Things You Need to know about Living Together/ Cohabitation

1. There is no such thing as a common law wife/ husband.  In 1753 Lord Hardwicke’s Marriage Act required there to be a formal ceremony of marriage.  It came into force in 1754 and has been amended variously since, the last time being in 1949.  There have been various royal commissions and proposals put forward to change the situation but there is no immediate prospect of that being changed. 

2. If you are not married neither party has any right to any continuing financial maintenance from the other party, (or obligation to provide)   

3. If there is a child involved, maintenance will primarily be payable through the CSA (or its successor).  See https://www.gov.uk/child-maintenance.     

4. The situation with regard to property is now less certain than it ever was.  If a property was held as joint tenants the starting point for division is equality.  To move from equality you will have to show exceptional circumstances as in Kernott v Jones almost irrespective of the contributions of the parties.  There are exceptions but as the name suggests they are exceptional.    

5. If a property is in the sole name of one of the parties it is possible for the other party to make a claim in certain circumstances particularly where there is contribution or a promise given.  This is a minefield and advice should be taken.    

6. Additional provision for children can be made under the Children & Families Act 2014.  Unhelpfully virtually all the reported cases deal with people who can afford to go to court i.e. very wealthy people.  There is little guidance for persons of normal means.    

An award under Schedule 1 of the Children & Families Act does not entitle the parent with care to any property or maintenance for themselves – only as a home for the child.  

7. Unless a father has registered the birth of the child since 1st December 2003, the father has no parental responsibility towards any child or any other right save those agreed between the parties or awarded by a court.   

If there is a dispute over children mediation should always be thought of as a first step.  Court proceedings can be lengthy, expensive and do not necessarily give either party the result they are hoping for.  Sometimes however they are the only available remedy where parties cannot agree.

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