By Julia Cluley, Divorce and Family Law Specialist, and Joanna Abrahams, Family Partner, at Valemus Law
In 2021 there were 3.6 million cohabiting families in the UK, a 22.9% increase over a decade, but do you know what your rights are if you are one half of a cohabiting couple? And, as professional advisers, are you fully up to speed with the rights of your clients who may be living in such an arrangement?
An ongoing and highly publicised break up currently in the media is that between Ryan Giggs and Kate Greville. Whilst the trial’s focus is currently on abuse, there remains the issue of what claims on Ryan’s income and assets, if any, Kate would be entitled to following the breakdown of this relationship. This is clearly at the forefront of Kate’s concerns with reports of her sending texts to the effect of “I am not walking away with nothing” unsurprisingly resulting in accusations by Ryan’s legal team that she is a gold digger. But can she, or anyone else in her situation, “dig for gold” as an unmarried partner?
If someone is married, or in a civil partnership and the relationship sadly breaks down ending in divorce or dissolution, the starting point for the division of assets will be 50/50. However, the court has a very wide discretion when dividing assets and various factors are considered, which may well result in a departure from this 50/50 division. The court’s number one priority will rightly be any children of the relationship, but it will also consider factors such as the respective parties’ housing needs, what they can earn (compared to each other) and any health or age-related issues. Coupled with these considerations the court also has extensive powers to make orders over the marital assets such as ordering a transfer of property and savings or even a car or business to a party, as well as maintenance to ensure they have sufficient income to meet their needs.
However, in the case of cohabiting couples, the harsh reality is that in a great many cases, the starting point is that they are not entitled to the assets or income belonging to the other party when their name is not on those assets. Therefore, unless Kate’s name is on the title deeds to the family home, it is unlikely that she will have an automatic right to a share of it, or even to remain living there following the end of the relationship. Like many other people in her situation, this could leave her facing a future of financial hardship without any recourse in law.
Even in circumstances where a former partner may have grounds to pursue a claim over property i.e., if they have acted to their financial detriment by selling their own property or relying on promises and assurances their former partner may have made as to them having an interest in the property, such claims are costly and complex with no guarantee of a successful outcome.
So, what then of the rights of the common law spouse? Unfortunately, this is and always has been a myth, which needs to be robustly debunked as it simply does not exist in law- indeed, it is a complete contradiction as there are no “rights”. This absence of rights is not exclusive to the assets in the relationship, but also extends to any claims for maintenance from a former partner, and therefore just because someone may have relied on their income during the relationship, this gives them no claim to it once they have separated.
People are often shocked by this almost complete lack of legal protection when these relationships end. However, there is some limited financial relief available to those who have dependent children i.e., for housing and essential income needs for those children, but for parties like Kate, who are not in this situation they can be left in a desperate position and unable to meet such needs.
For the majority of the over 55s who are part of a cohabiting couple, and who may have previously been married or in a civil partnership, they may be more aware of their position, especially if they have already been through a divorce or dissolution. However, the plight of many Millennials or Generation X individuals in this position is likely to come as a complete shock, especially as they tend to marry or enter civil partnerships (if at all) much later than earlier generations.
So, is there anything that can be done to mitigate these issues for those who are considering cohabiting or are already doing so? The answer is yes! They should seek legal advice about entering into a Co-habitation Agreement with their partner. This document can set out the terms by which they are (or will be) living together and who is entitled to what – especially if the relationship ends. Whilst these agreements are not enforceable in the Courts, if done properly, they will go towards highlighting what the parties’ intentions were, which can really help if things turn sour.
In general, it is always wise for any sole legal owner of property being lived in by both parties to ensure they do not give their partner the impression have, or will have any entitlement to that property. Importantly, their partner should also not sell off their own assets or invest heavily in the property based on a misunderstanding that they will acquire any rights in it. Ideally, if the parties intend there to be a shared interest in property, the Cohabitation Agreement would be accompanied by a document called a Declaration of Trust. This is legally binding document setting out what proportion of such property is owned by each party and what will happen to it if the relationship ends.
In conclusion therefore, as much as society has progressed and modernised, cohabiting couples must be aware that our family laws have not kept up with this and they simply do not have the same rights as married couples do.