The case for a cohabitant’s charter

The media dub them "common-law husband and wife", but the term doesn't exist in law. In fact, if you

The following acts determine the claims of a spouse. By contrast, a cohabitee’s position is governed by several pieces of disjointed and complicated legislation.

1. The Matrimonial Causes Act 1973 and subsequent legislation: gives spouses proprietary rights and rights to a lump sum and/or maintenance on divorce.

2. The Children Act 1989: grants rights in relation to children.

3. The Inheritance Act: gives rights on the death of a spouse.

4. The Births and Deaths Registration Act 1953: gives rights for the registration of a child’s surname at birth.

5. The Pension Act: entitles a spouse to pension sharing orders on divorce.

6. Tax laws: give beneficial rights to spouses and allow capital sums to be transferred both during the lifetime or on the death of a spouse free of tax.

7. The Fatal Accidents Act 1976: allows an action for damages to be brought by a dependent spouse.

Here two case studies illustrate the non-existent or extremely limited rights accorded to the cohabitee.

Case study 1

Wendy had had a 14-year relationship with George and they had two children. When the relationship broke down her position was better than Anna’s (opposite) because of the children. She could make claims under the Children Act 1989 Schedule 1 for a property for the children but this would last only during their minority, so that when the children ceased education she would be without a home. She could claim lump sums for the children through the Children Act and an allowance for herself to look after the children, which would be extremely limited; and maintenance for the children through the Child Support Agency. She would be forced back into the workplace in due course because she would have no rights or security for herself once the children had stopped their education. If George died, she would have to demonstrate that she was a dependant and had lived with him for more than two years before she could make any claims under the Inheritance Act. Because she had made no financial contributions, again her claims would be extremely limited.

What these two cases show is that a brief recital in front of a registrar or priest would have given the women all the rights they would have required. While any lawyer would now recommend a cohabitation agreement, to set out arrangements in the event of a breakdown of the relationship – what is to become of the home and payment of bills, for example – nevertheless, this is only part of the solution.

Case study 2

Anna was 45 when her relationship with Edward broke down and she sought my advice. The relationship had lasted 17 years and she did not work. There were no children. I had to explain to her the anachronistic formula for her to achieve any kind of settlement. As a cohabitee, she couldn’t rely on straightforward legislation: in order to establish any rights to the home where she had been living for many years she had to rely on trust law, which allows a claim under the Trust of Land and Appointment of Trustees Act 1996.

Could she establish an express declaration of trust, ie, one manifested in writing signed by the title holder or agent? In plain English, was the home in joint names or was there any other document to prove her interest? No, there was not.

Could she show a resulting trust, ie, a direct financial contribution to the acquisition of the property? No, she could not. She had paid for curtains and shopping, allowing her partner to pay for the home and the mortgage.

Could she establish a constructive trust, ie, the common intention that the person who is not the legal owner should have a beneficial interest and that she had acted to her detriment in relying thereon? No, she could not.

Could she prove a proprietary estoppel, ie, that assurances had been given to show that there was an issue of reliance by her or mutual understanding? No, she could not. In reality, she had paid no monies in the belief that she would have an interest; she had not been made any promises by Edward and was, in effect, without any claim to the home; nor was she entitled to be maintained by him under any legislation. She was not entitled to any lump sum or pension claims. She was without remedy.