July 24, 2018
Cohabitants. What are my rights to financial provision?
As any family law student knows, the law in England and Wales does not at present afford to those of different sex who have lived together as if they were husband and wife, the same rights to claim financial relief against each other as are afforded to legally married couples during cohabitation or upon divorce or judicial separation. There is no legal right to financial support available to cohabitants of different sex as is the case in Scotland.
Regrettably, many people south of the border still labour under the misapprehension that the relationship of common law husband and wife is a recognised status in law with equivalent rights during the relationship and upon separation to those who are or have been legally married.
Hard cases like Burns v Burns in 1984 abound in the law reports. Notwithstanding a 19 year relationship that outwardly bore the hallmarks of a traditional marriage and having borne and raised two children, Valerie Burns (who had even changed her name by deed poll) was unable to establish a beneficial interest in her erstwhile partner’s property which had been their family home because she was obliged to rely on principles of civil law which did and do not recognise or incorporate the principles of sharing, needs and/or compensation which would have been the case had the parties been married and then divorced.
Whilst later decisions of the higher courts in Oxley v Hiscock  and Stack v Dowden  have helped by enjoining a court to consider the whole course of dealing between the parties in relation to a home when considering claims by a cohabitant under the Trusts of Land and Appointment of Trustees Act 1996 for an interest in the property, the question as to whether the claimant has a beneficial interest rather than its extent, is still decided by applying principles of trusts law or equitable principles such as proprietary estoppel, which often present insuperable evidential difficulties to a claimant.
Despite recommendations from the Law Commission [Law Com No. 307] for change to reflect the growing trend in society towards cohabitation, the support of many members of Parliament and in the legal professions for change, the government has baulked at introducing comprehensive legislation to remedy the injustices that can arise when a different sex relationship of more than a transient nature or duration breaks up permanently.
In such circumstances, if the parties involved are unable to resolve their differences and claims through mediation or other alternative dispute resolution procedures, or have not previously entered into a legally binding cohabitation agreement which can be enforced, they have to resort to the civil law (a patchwork of legal principles) in relation to any claim to property or to limited statutory rights for financial provision in certain situations.
Thus, in the context of the family home, (usually in circumstances where molestation or harassment has occurred) a cohabitant has the right to claim relief for the sole occupation and maintenance of the home previously enjoyed with an erstwhile partner under the Family Law Act 1996. However, the right to such provision (in terms of the discharge of rent, mortgage payments or other outgoings and repairs affecting the dwelling house) can only be of limited duration and can-not exceed 12 months. Unless the needs of minor children can be invoked, no right to any other form of maintenance or ongoing financial support is available to the unmarried cohabitant.
For a different sex couple who object in principle to marriage, change is long overdue but the recent judgment of the Supreme Court in R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondents)  UKSC 32 given on 27 June in which the court ruled that it was discriminatory to restrict civil partnerships to same sex couples, may mean the government will now move quickly to support the proposed changes to the Civil Partnership Act 2004 by Mr Tim Loughton MP designed to achieve the extension of civil partnerships to different sex couples.
By James King-Smith | Divorce and Finance
James has been a practising barrister since 1982. He has been specialising in matrimonial and family finance claims for over 15 years and has a particular interest in dealing with financial claims between cohabitees. He has been trained as a civil and commercial mediator by the ADR group and has acted as mediator in numerous financial disputes between cohabitees. He accepts work in all areas of family financial disputes and is able to conduct mediations in disputes between cohabitees and private financial dispute resolution appointments in chambers in Brighton or London or elsewhere at the parties’ convenience.