A belief in this myth of a common law spouse remains a problem. Whether with a heterosexual couple or a same sex couple THERE IS NO SUCH THING AS A COMMON LAW SPOUSE! Living together on its own confers no property rights.
Many individuals still believe in this myth to their detriment. Many people have a mistaken belief that they are protected by this common law myth. People believe that they are protected because they’ve lived together for 6 months, or 2 years, or because they have children together or they have a dog together! The ideas vary wildly. What doesn’t vary is that people get a shock to find out that their entitlement to any assets is very different to what they expect. It is very different to the rights of married couple or those in a Civil Partnership. And it isn’t good news either.
The law in relation to the division of property for cohabitants relies upon a troubled blend of land/property law and trusts. It is a heady mix of long established law that does not take into account the current prevalence for cohabitation rather than marriage. The law when dividing assets for cohabitants has the lawyers scratching their heads as well as the clients and the result is far from guaranteed.
If the cohabitants hold property together then unless they have prepared a declaration of trust it will be assumed that they hold the property as joint tenants i.e. equally. Already we’re falling into legal language to explain how the assets are held and that is just the start. If there is a declaration of trust then the court will abide by that unless there has been fraud or a mistake.
It is often the case that one party has the property in their sole name with the other believing that they have a share in it. It is then that the court has to look for a constructive trust which is even more difficult. To prove this constructive trust, one must be able to show that one party acted to their detriment in the belief that they would have an interest in the property together with a common intention that the parties would share the property beneficially. If that is achieved the court must decide what the parties intended to be the share between them. The courts have had to deal with such cases on a piece meal basis with each case turning on its own facts.
As a result what will happen on separation is still unclear. The range of reasonable outcomes that are more predictable in a divorce do not exist here. The court does not consider what would be fair but what the parties intention was. The court does not consider the children’s needs either. That is not an issue here. In a matrimonial division the court sets out by trying to achieve what is ‘fair’ based upon Matrimonial Legislation and case law. There is no such statute for cohabitants and case law varies.
According to the Office for National Statistics report for 2014 released on 28 January 2015 Cohabiting couple families grew by 29.7% between 2004 and 2014. This is the fastest growing type of family in the UK. Households containing two or more families were the fastest growing household type in the decade to 2014, increasing by 56% to 313,000 households. With recent statistics showing that cohabitation is on the rise and marriage is on the decrease this is an area of law that is ripe for reform. It will not happen in this government. There is no indication that it will happen in the next government or at any time soon.
Only one thing is certain for cohabitants. The future remains unclear.