Every Family Lawyer knows the feeling well. Telling the lovely client sitting opposite you that they have no claim against pension funds nor income of their long term partner following a recent split. Both of which they have managed to achieve in part because your client stayed home to look after their now adult child whilst their partner worked.
‘But surely, we have been together so long that I have the rights of a common law wife’ they cry. You can see the disbelief in their eyes when you tell them that is quite simply not the case.
There is no such thing in English law as a common law husband or wife. You are either cohabitees or you are married. There is no in between in English law.
Couples who have been married can potentially make a wide range of financial claims against their ex-spouse in the event of their divorce. This can include claims for on-going income, claims in respect of pension funds and claims of any and all assets irrespective of in whose name they are held. Whether or not all those claims would be appropriate or successful in any particular case will depend entirely upon the particular circumstances of that particular couple’s marriage (A subject of an upcoming blog) At least they have that menu of potential claims available to them.
The law relating to unmarried couples, where there are no minor children, is based firmly in strict rules of property law and complex and messy rules of Trusts (believe me you don’t want me to go into detail here about the finer points of constructive Trusts, resulting Trusts and legal doctrines such as promissory estoppel). Following separation from a cohabitee, you only have a right to claim against assets that are in joint names with your ex-partner or in your ex-partner’s name. You must show that you have somehow financially contributed towards its acquisition or its value or that there has been something said or done in the past that provides the Court with sufficient evidence that there was an intention to share an asset or a legal trust created.
Imagine if you can, the client mentioned above who has lived with her partner for thirty years. Neither of them thought it was important to get married. She perhaps didn’t work most of the time they were together because she was raising their child who is now living independently. She has no pension or earned income. She is about to have her fiftieth birthday and might find it difficult to establish any sort of career for herself whereas her soon to be ex-partner has worked throughout the relationship, resulting in him receiving a significant pension fund and a high income. They live in a house in joint names. This lady may well only be able to recover her half share of the equity in the house and have no claim on anything else. She will leave the relationship with no rights to claim on her ex-partner’s pension, nor to receive any income from it, even if only for a short period whilst she gets herself on her feet. That is very different to the same couple ending a marriage and negotiating a divorce settlement. Had she been married to her partner, she could expect to receive a share of his pension fund to provide for her retirement and on-going income possibly for life, but almost certainly as a minimum for a period of time.
A very different picture isn’t it?
Had that same cohabiting couple separated whilst their son was still a minor, then claims under a piece of legislation called the Children Act 1989 Schedule 1 might have been possible. However, these claims are limited to receiving money for a particular purpose for the benefit of a child. If for example, a lump sum was needed to provide a home for the child. The downside to claims made under that particular law, is that any monies received are effectively ‘on loan’ until the child reaches maturity and then the money has to be paid back.
For some time now there has been debate that separating cohabitees should be given the same right as divorcing in married couples.
Is it right that the lady in my little case study should be treated differently dependent on whether or not she had a marriage ceremony?
Would giving cohabitees the same rights as married couples have a knock on effect for the marriage rate in this country which is already in decline?
In today’s society, when so many people cohabit rather than marrying, is it right to discriminate in this way?
I would be interested to hear your views.