Judith Bray, “The Financial Rights of Cohabiting Couples”, Family Law 39 (Dec. 2009)
Judith Bray, “The Financial Rights of Cohabiting Couples”, Family Law 39 (Dec. 2009), 1151-1157.
This article considers the common misconception amongst the general public that a cohabitant, after a number of years, will derive property rights in the same way as a married person. It seeks to compare how the law has gradually improved the rights of a spouse who claims a share in the family home and maintenance with the rights of a cohabiting partner. It shows that there are no rights in cohabitation derived from status. Recent Law Commission proposals published in 2007 – Cohabitation: The Financial Consequences of Relationship Breakdown – which proposed some limited protection to a cohabitant have not been adopted. Any rights in the family home for a cohabitant will be based on property law.
The article then addresses the difficulties that a claimant may encounter in trying to establish these rights. It shows that the strict property law principles rely on contributions of capital in order to establish rights or alternatively there may be rights if both the parties agree this together. Many couples do not discuss rights in property either through ignorance or because they feel it is inappropriate to discuss such things. It means that a cohabitant who does not contribute money towards the purchase of property and who cannot show there has been an agreement to share the property cannot claim property rights, even where there have been substantial contributions towards the care of the family and improvement to the property.
By way of comparison the family law courts have put more and more weight on indirect contributions, and now see the contributions of homemaker and child-carer as equal to the contributions of the money-earner. This contrasts quite noticeably with the approach to property claims of a cohabitant where indirect contributions will be irrelevant unless there are financial contributions or an agreement has been proved.
The full text of the article is available on University computers via LexisLibrary (external link).
Judith Bray is a Senior Lecturer in Law at Buckingham and she is also Director of the Part-Time LLB and Deputy Senior Tutor. She teaches Land Law, Trusts and Family Law and she is author of Unlocking Land Law, published by Hodder Education.