It is still the case that many people don’t know that there is no such thing as “common law” husband and wife.
This very often means that, on separation, the financially weaker party has little or no protection in law when a relationship ends, irrespective of how long the parties have been together.
In the majority of cases, the financially weaker party is the woman.
Unlike on divorce, there is no mechanism in law for an ex-partner to be granted financial relief such as a property to live in, a lump sum, maintenance for themselves or to have a share of the other’s pension.
If one partner has worked outside the home during the relationship and built up a career, no credit is given on separation to a partner who may have stayed at home to look after children.
Any claim by a former cohabitant is based on strict property law. If a property is owned jointly then it is likely that each party is entitled to a half share, though this depends on how the property was purchased in the first place. If one party can demonstrate that they have contributed financially to a property and there was an understanding that this meant they would acquire an interest in the property, then a claim may be possible. Any claim would be under the law of trusts which is very complex and never clearcut.
Where there are dependent children, it may be possible to seek a court order that a home is retained as a roof over their heads until they reach adulthood. This does not, however, mean that the parent remaining in the property has any, or a greater claim, as the property still reverts to the other parent when the children become adults. The parent who stays in the house with the children then has the prospect of having to find somewhere else to live.
Child maintenance has to be paid, usually via the Child Maintenance Service, if no agreement can be reached, but there is no mechanism in law for maintenance to be paid to an ex partner. The Child Maintenance Service uses a formula for working out the amount payable and is not always effective, especially when a non-resident parent seeks to avoid payment.
In England and Wales, the law on cohabitation is very different from the law on divorce, which allows the court to redistribute assets irrespective of who is the owner, and, in certain circumstances, award spousal maintenance.
In many countries, including Scotland, legislators have sought to provide some legal protection for former cohabitants.
Currently, the Women and Equalities Select Committee in Parliament is investigating the equalities issues around cohabitation in England and Wales, and how cohabitation rights could be strengthened. Their report is due before the end of 2022 and will look at what legal protection for cohabitants could look like and how this might be introduced.
What the inquiry has found thus far is that cohabiting partners make up the fastest growing type of family, with over 3.4 million partners cohabiting in England and Wales. It also found that the “common law marriage myth” persists.
In Scotland the law was changed in 2006 to allow the court to order that one party pays a capital sum to the other, which can be on one lump or by instalments. This is particularly relevant if there are children as a lump sum by instalments is effectively maintenance over and above the amount of any child maintenance payable. A one off capital sum could go some way to enabling the financially weaker party to buy their own property, without the prospect of losing this when the children grow up.
Under Scots’ law there is a strict limitation period of one year from the time the cohabitation ends, so action must be taken swiftly. When determining the claim the court looks at whether the applicant has suffered an economic disadvantage because of their former partner (for example, by giving up their career to look after children), or if one partner has gained an economic advantage thanks to contributions, financial or non financial, made by the other partner.
The law in Scotland therefore does not provide as much protection as a divorce would in England and Wales, but it does go some way to protecting the financially weaker party.
Whether reform happens in England and Wales does seem a long way off, but at least with this Select Committee report, there will be some focus on law reform which, as it stands, can and often does produce extremely unfair outcomes.
