At the end of November, our governing body Resolution ran an Awareness Raising Week focussing on highlighting the lack of rights of cohabiting couples and the fact that many unmarried couples living together mistakenly believe they are protected by rights from a ‘common law marriage’
The law surrounding the rights of cohabiting couples remains somewhat disjointed and hard to follow. The concept of a “common law spouse” is a fallacy that persists in people's minds and which causes a lot of confusion to separating families. The fact that a couple may have lived together for many years, and have children together, does not automatically give them any additional rights, and they do not have access to the same rights as a married couple going through divorce proceedings. There has been much discussion in the media about non-married couples gaining additional financial rights against the other, but the law in this area has not changed over the last 20 years, and as to whether it should remains a controversial subject.
A dispute concerning jointly owned property is dealt with under the Trusts of Land & Appointment of Trustees Act 1996 (“Tolaata”), and this act applies not only to couples in a relationship, but any co-owners of property. Proceedings under this Act fall within “civil” proceedings, rather than family proceedings, and there is little room for discretion. If parties purchase property by contributing unequal sums of money, or they contribute different amounts to the mortgage payments, they should take legal advice about what their rights would be in the event that the relationship breaks down. Parties who intend that their share of the property should reflect their respective financial contributions should enter into a Declaration of Trust, also known as a Trust Deed, setting out exactly how the parties' shares would be worked out in the event of a sale. In most cases a Declaration of Trust will be conclusive, and it would be unusual for a Court to disregard its terms. Likewise, if there is no Declaration of Trust, then the property is assumed to be owned in equal shares, and it can be difficult to establish otherwise.
A person who moves into their partner's property should be aware that they will not automatically buy an interest in the property just by contributing towards the monthly bills or mortgage. Even paying for routine decorative work and maintenance is unlikely to give rise to a claim. In the absence of a clear common intention that the ownership of a property is to be shared, it is very difficult for a non-owner to establish a legal or beneficial entitlement.
An application to the Court under Tolaata will ask the Judge to determine the parties' respective shares in the property, and potentially ask for an Order for sale. The Court is required to consider the welfare of any minor child who lives in the property as his home, but this is not the paramount consideration of the Court in the way it would be within divorce proceedings.
Separating couples who are not married generally do not have any right to claim against the other party’s income or pension, or other assets unless held in joint names. Be warned - a parent who may have been financially dependent on the other party for years, having given up work to care for the parties’ children may find themselves in a position where they have no career and independent income, and no means of securing financial support from their former partner.
However, couples who have children should also be aware that they may have financial claims under Schedule 1 of the Children Act 1989 which attempts to fill the cracks in the law relating to financial provision for children.
Published on 16/02/2018