The official figures confirm that there are now more couples living together than there are married couples. One could, therefore, be forgiven for drawing the conclusion that there are real benefits to be derived from cohabitation.
However, although cohabitation has been a developing trend over recent years – there has been no corresponding response from the legislature to cater for the consequences of the breakdown of such relationships.
In essence, the law is in a very unsatisfactory and inadequate state.
The two main problems are as follows:-
- Each party’s property rights are determined by the Law of Trusts which can be both rigid and expensive in the event that either party has to make an application to the court. Even if the parties have lived together for a long period of time – it is very difficult for a party whose name is not on the Title Deeds to establish an interest in the family home. Further, unless the parties have, during their relationship, been engaged, there is no process by which property issues (such as the division of the contents) can be determined by the courts.
- The second problem is in respect of maintenance. It is not possible for a non-working partner, even if he or she is caring for the couple’s children, to obtain a maintenance order in his or her own right.
Child maintenance is still available through the Child Maintenance Service in the absence of an agreement between the parents. However, it is often the case that child maintenance is insufficient to provide properly for the non-working partner and the children.
There have been many cases where a cohabitee, after dedicating his or her life to the other partner, finds that he or she is precluded from being able to make any claim at all against the other party notwithstanding his or her contributions towards keeping home and bringing up the children and notwithstanding all of the other efforts that person may have made towards the family unit.
The present situation is an entirely iniquitous one.
A number of other Western countries have updated their laws with regard to cohabitees. Perhaps the best example is the Australian legislation which has given cohabitees the same right as spouses in the event of the breakdown of the relationship. The only conditions are that the parties (whether same-sex or heterosexual) must have the relationship registered and must have lived together for at least two years or must have had a child together.
Having said all that “the worm is slowly turning”. The senior Family Court Judge in England and Wales has called for comprehensive new laws to protect cohabitees. (To date, his calls have remained unanswered by a coalition parliament that believes that it has more important issues to grapple with).
The recent case of Kernott -v- Jones, gives us all some hope for the future. In this particular case, the court when dealing with a jointly owned property, awarded Ms Jones much more than half of the equity in the property (in fact 90%) on the basis of her contributions and also because the court felt that was the right thing to do. On the other hand, Mr. Kernott ended up with just 10% of the equity in the property.
This seems to be the first time that the courts have decided to look behind the actual ownership of the property and impose a settlement based upon fairness. This decision can cut both ways. There is no reason at all why, if the boot had been on the other foot, Mr. Kernott should not have been the one who was awarded 90% (with Ms Jones getting just 10%).
It has always been the view of this practice that the courts should try and do the right thing between the parties. It should look behind the way in which the assets are held between the parties and come up with the right decision given all of the contributions and circumstances of each particular case. This is the approach that the courts take to divorce cases.
The view of this practice is that – notwithstanding the strictures of the present legal position – there are arguments that can be put forward on behalf of a cohabitee notwithstanding the absence of that cohabitee’s name on the Title Deeds of the family home and notwithstanding the apparent inability of the non-working cohabitee to make a claim for maintenance in his or her own right against the other cohabitee.
That possibility is perhaps slightly stronger than it was prior to Kernott –v- Jones, given the mellowing in the approach that the courts are taking to these types of problems.
In any event, the certainty is that such problems need specialist legal advice especially where the case involves business assets (for example – where both parties own shares in a private limited company)
We continue to press for the law to be updated given the continuing problems that its defects cause for not only the cohabitees themselves but also for the children of cohabitees.