Claire Marshall, a family law specialist with solicitors, Charles Lucas & Marshall, explains the vulnerable legal position faced by cohabitants.

Married couples who decide to divorce, can utilise matrimonial legislation to deal with the financial arrangements, including property and maintenance. This legislation encompasses the notions of equality and fairness.

Cohabitants cannot use matrimonial legislation when their relationship ends. The Child Support Agency can deal with a claim for child maintenance and there are areas of child law which also provide for additional financial provision for children.

However, cohabitants have no legal provision for maintenance for themselves. When looking at the division of the cohabiting couple's property, they must rely upon property law. This area of law is based upon issues of fact. It does not incorporate the same ideals as matrimonial law.

The property may be jointly owned by the cohabitants. A Deed or Declaration of Trust may have been prepared to set out the shares that each person owns in the property. If this is not the case, then being awarded a share in the property will depend upon the cohabitants’ ability to establish ownership. This must be based upon either a financial contribution (such as paying the deposit for the purchase of the property) or a common intention (i.e a firm agreement between the couple).

A common situation exists where one person owns a property and a new partner moves in. The property is in the sole name of the original owner and she or he meets the monthly mortgage payments. The new partner may pay for food and utility bills. If the relationship breaks down, even after many years, the new partner will have no claim upon the property unless she or he can provide evidence that there was a common intention of ownership of a certain share of the property.

If there was no agreement to that effect, and the new partner had simply relied upon the myth of ‘common law husband and wife’ then they may have no claim on the property. The contribution to the household outgoings is not enough on its own to establish ownership.

It is possible to draw up a cohabitation agreement to confirm the common intention of the unmarried couple. The couple should each seek independent legal advice, preferably from a specialist family solicitor, to ensure that an appropriate binding agreement is prepared.

The Law Society and the Solicitors Family Law Association are pressing for reform in the area of cohabitation, to provide more protection for unmarried couples. Same sex couples can now form a legal partnership by way of Civil Registration but there are no immediate plans to extend this to unmarried heterosexual couples.

For further information contact Claire Marshall on 01635 521212 or by e-mail claire.marshall@clmlaw.co.uk