Cohabitees and their rights if the relationship breaks down

 

The law relating to cohabitees is quite different from the law relating to married couples so far as property rights are concerned although issues involving children and injunctions are dealt with in broadly similar (although not identical) ways. It is important to remember, of course, that "cohabitees" mean any couple who live together and that may include same sex relationships. The law is the same whether the parties are the same sex or not. The big difference is between the status of marriage and that of co-habiting. Children are rarely an issue in same-sex relationships but the law as it affects property rights is the same whether the cohabitees are of the same sex or not. It is only the focus of any dispute which is likely to be different.

If the relationship between two unmarried people breaks down then their property rights are unaffected. The distinction between "his, hers and theirs" (or, indeed, between "his, his and theirs" or "hers, hers, and theirs") is very real in this situation and each person is entitled to claim their own property. This is in marked distinction to the position between married couples where the courts can divide all property ("his, hers and theirs") in whatever way they think best regardless of who actually owns them. In the case of divorce following marriage breakdown the courts have a very wide jurisdiction over all the marital property and, broadly speaking, such property is usually divided between the parties according to their perceived needs.

It is important to appreciate the importance of this distinction. For example, it is quite common following a divorce for the former matrimonial home to be transferred into the sole name of the ex-wife who continues to live there with the children of the marriage. The ex-husband may also be obliged to pay maintenance for his children and/or his ex-wife. The reason this often happens is that the need of the children to have a stable home environment and a roof over their heads quite frequently dictates that the house be transferred into the sole name of the ex-wife. This may be despite the fact that all mortgage payments, for example, may have been made by the ex-husband, perhaps over many years. Such a situation often causes bitterness for understandable reasons.

The case of an unmarried couple is quite different. Their property rights remain exactly the same after the split as before. Any property continues to belong to its owner and that is usually the person who paid for it. Naturally, there is some room for dispute over this but that is the over-riding principle and the courts have no jurisdiction to ignore it. So if, for example, a man owns a house and moves his girlfriend in but the relationship subsequently breaks down there is no question but that the house remains the property of its owner and the girlfriend has no claim on it whatever - whether there are children or not. However, it is fair to say that a complication that may arise in the case where cohabitees have dependent children is that the courts have jurisdiction to refuse to order a sale of the property until the children cease to be dependent or otherwise to need the property as their home while they are dependent.

People often refer to a "common law wife" in this connection and there is a widespread misconception that after a certain period of time a "common law wife" acquires the same rights as an actual wife. This is not the case. There can be complications in that there may be a dispute over who owns what or who contributed how much to a given purchase but, in principle, the answer is always the same: each is entitled to keep their own property. This may involve the sale of jointly owned property (which either can usually insist upon) but the proceeds of sale will be divided according to strict property rights.

What is more, an unmarried couple can come to an agreement about what is to happen in the event of subsequent separation and, insofar as it affects property, such an agreement will be legally binding. Such an agreement made by a married couple could be ignored by a court in dividing the matrimonial assets but that is not the case where the couple is unmarried. Indeed, that could be said to be one of the advantages of being unmarried because the jurisdiction of the courts to interfere with property rights is very much more restricted where the partners are unmarried.

People often mention the possibility of "pre-nuptial agreements" which would regulate what would happen to the property of a married couple after divorce. These agreements are possible in other jurisdictions such as the United States and it is probably as a result of US influence on the media that so many people are aware of this but pre-nuptial agreements are not generally binding in the United Kingdom. The courts retain ultimate jurisdiction as to how to divide the matrimonial property after a divorce and they would not flinch from ignoring such an agreement. They cannot do this where the agreement regulates property rights between an unmarried couple.

In the case where, say, a house is to be bought jointly by an unmarried couple it is sensible to enter into a written agreement as to who has contributed what and what is to happen if the parties later split up. This can save a dispute and legal costs later and it is something which a solicitor can easily do. In the case of a joint house/flat purchase by an unmarried couple it is a matter of elementary prudence to make such an agreement and it is a lot easier to do at the outset than later when difficulties may have arisen.

There are a number of other issues which an unmarried couple may want to consider. For instance, they are not actually legally related in any way and so if either wants to benefit the other in the event of death it is usually sensible to make a will to that effect. If that is not done then the beneficiaries may well be the next of kin who were not expected to be beneficiaries at all. Similarly, there may be issues as to involvement in decisions on medical treatment etc because it must always be remembered that the partner of someone who is unmarried is not the next of kin.

 

There is another point worth mentioning. People often say that the law relating to cohabitees ought to be the same as that between married couples and sometimes proposals are brought forward to legislate for that. There is a serious objection to that. As things currently stand in England and Wales a married couple cannot opt out of the jurisdiction of the divorce courts. prenuptial agreements in general do not work and so in the case of divorce the courts have the last work in deciding who gets what. That is not the case between unmarried couples where, esentially, each partner retains their own. What this means is that to marry or not to marry is in effect the only choice that people have open to them if they wish to preserve their own property. If the rights of married and unmarried couples were to be assimilated then this basic freedom of choice would be removed.

 

Certain common problems tend to recur in the case of the breakdown of a relationship between an unmarried couple especially problems over property.