Cohabitation

April 15, 2018

The legal rights of cohabitees continue to be much less than what they should be.

There is no doubt that some protection is available but not nearly enough.  The situation becomes more complicated if children are involved.

The pertinent law is contained within the following Acts:-

1. The Child Support Act of 1991

This legislation provides protection for single parents in the event of the breakdown of the relationship between the natural parents.  The parent with care of the children can apply to the Child Maintenance Service for the other parent to pay monthly maintenance for the benefit of the children, which is to be paid until the child’s 18th birthday or upon completion of their secondary education (whichever is the latest).

An application to the Child Maintenance Service for an assessment of how much the paying parent should pay costs a one-off fixed fee payment of £20.

The amount payable by the other parent depends upon a number of factors including the gross income of the paying parent (after deducting any pension contributions), the amount of time that the child(ren)  spends with the paying parent and whether or not the paying parent is required to financially support any other children.

The following link will be useful as an initial guide: https://www.gov.uk/calculate-your-child-maintenance

If the paying parent’s income exceeds £156,000 gross per annum, the parent with care of the child, can apply to the Court for a “top-up” of the maintenance payment.

Difficulties with the calculation of child maintenance arise if the source of the paying parent’s income is not necessarily straightforward. The Child Maintenance Service have access to records held by HMRC and can therefore access the details of “earned” income, which is defined as income by way of self-employment or employed income.  “Unearned” income, for example, rental income or dividends, can be taken into account but only if the parent with care of the child makes an application to the Child Maintenance Service for a “variation on the grounds of unearned income”. The Child Maintenance Service will then obtain the paying parent’s most recent self-assessment tax return. Providing that the “unearned income” is more than £2,500 in that year the Child Maintenance Service will take this source of income into account in its calculations.

Upon calculating the child maintenance that should be paid, both parents will be notified. It is possible to appeal the findings of the Child Maintenance Service, although the process is often cumbersome and longwinded.

The grounds for appealing an assessment are that the other parent has diverted income or been materially dishonest.

2. The Children Act of 1989

This legislation allows the parent with care to make various financial applications against the other parent.

These applications include:

• an application for maintenance for the child (i.e. a payment over and above the child maintenance that is due under the Child Support Act 1991)
• an application for a lump sum payment; or
• an application for a transfer of property.

In the case of a transfer of property, once the child is 18 years of age, the property needs to be transferred back to the other parent. Upon reaching 18 years of age the child is deemed to be an adult and the law assumes that they can make their own way in the world, or that they are no longer financially dependent upon their parents. However we know that that is often not the case!

This provision is a patent nonsense. The property should remain with the parent who is living with the child and that should be the end of it in the writer’s view.

Parental Responsibility

Mothers automatically have parental responsibility for their child (as does a father who is married to the mother at the time of the child’s birth).

However, those fathers who are not married to the mother will not have parental responsibility for their child if the child was born prior to 1st December 2003 (even if he is the named father on the child’s birth certificate). If the child was born after 1st December 2003 then the father who has his name on the birth certificate will automatically acquire parental responsibility.

Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

Most fathers now have parental responsibility. However if you have older children then you should consider whether or not you are covered by this provision.

Parental responsibility for same sex cohabiting couples (who have not entered into a Civil Partnership or marriage) will be dependent upon whether or not the child was conceived using a licenced clinic. If such a clinic was used then both parents will be recorded on the child’s birth certificate and will have parental responsibility. If an unlicensed clinic was used and only the mother is recorded as the child’s parent on the birth certificate, no other person will have parental responsibility for the child. An advice as to how parental responsibility can be obtained in these circumstances is complex and will often be fact-specific.

3. The Trusts of Land and Appointment of Trustees Act 1996

This Act deals with property disputes between cohabitees.

Unlike the financial negotiations arising upon a divorce, when dealing with cohabitants, the Court does not have the principle of fairness at the forefront of its considerations. The needs of each party are not taken into account. The result is often dependent upon points of law or each party’s credibility (or lack of it).

If any area of the law affecting human relationships requires absolute precision – it is this.  The documents relating to the purchase of the property need to clarify who actually owns the property and on what basis.

In addition, there may be significant factors which affect the ownership of the property into the future. i.e. one of the parties reduces the mortgage substantially as a result of the receipt of an inheritance.

If the transfer documents shows that the property is jointly owned and there is no substantive evidence to the contrary, the property will therefore remain jointly owned. Upon sale of the property, the net proceeds of sale will be divided equally. This is the case even if the deposit was paid by one party alone.

On the other hand, if the property is in the ownership of just one of the parties and the other party claims against it (i.e. the claimant), he/she will need to show an interest in the property which will need to quantified. This is not an easy thing to do and it will require detailed and specific evidence to succeed with such a claim. That evidence should include evidence of direct contributions towards the purchase of the property, or evidence that the other party agreed to let him/her have an interest in the property on the basis that he/she spent time, money and effort on the upkeep and paid some or all of the outgoings.

It takes clear evidence and a well drafted application to succeed.

These two examples are but a few of the types of cases that can arise

Such cases can be both expensive and uncertain.

The law is out of date despite the need for urgent reform and despite cohabitees accounting for nearly half of all couples who live together.

Scenario

Let us look at a classic scenario.  We can then compare the difference between the outcome for a married woman as opposed to that of an unmarried woman.  I refer as follows:

The married woman

This is a 40 year marriage.  The husband has worked hard and been successful with his career.  The wife has also worked hard by bringing up the four children of the family and by given up the best years of her life to support her husband. 

The marriage breaks down.

The wife divorces the husband and claims successfully against all of the assets of the marriage (together with his pension) and his earnngs.

Given the amount of wealth in the case, the wife walks away from the marriage with financial security for the rest of her life.

The Cohabitee 

Let us contrast that situation with that of the cohabitee.  Given that all of the assets are in the man’s name, her situation is a bleak one. In essence, she does not have a claim against the father.

To conclude

Common Law wife?

In essence – there is no such thing …

This example probably best explains the difference between the rights that are enjoyed by divorcing couples as opposed to the rights of unmarried couples.

What is the advice that we can give to people in such circumstances?

Put simply, there are two things that a cohabitee should do before embarking upon a cohabiting relationship:-

1. i) Sign a Cohabitation Agreement

This is an agreement which sets out what will happen to the house and the assets and the children in the event that the relationship breaks down and one party is left holding the baby. Providing that:

• The agreement is a fair one.
• Both parties have had the opportunity of obtaining independent legal advice before entering into it. And
• They have each disclosed their respective financial circumstances to the other before signing off,

There is a good chance that that agreement will be upheld by the court in the event of a dispute at a later date.

1. ii) Legal Advice

Secondly, if you find yourself in these circumstances, you would be well advised to get legal advice from a specialist family lawyer just as quickly as possible.  Otherwise, like many people in this situation, you will be left badly off.

Certainly, any cohabitee who finds himself/herself in this situation, might be well advised to remain living in the family home as a last resort.  It is sometimes difficult to prise a former cohabitee out of a property without giving him/her some kind of financial inducement.  That may be the only hope for the claiming party in these circumstances.

The final question is what hope can we have for cohabitees into the future?

There is a growing call from family lawyers and even Judges for the law to change and for protections to be given to cohabitees.  That has not happened yet.