The myth of the common law wife runs deep, in a Good Housekeeping survey, more than 50% of women believed that cohabiting couples won the same rights as those who are married after living together for a number of years. When you consider the number of opposite sex cohabiting couples has increased, from 1.5 million in 1996 to 2.9 million in 2012, that’s potentially a lot of women in the unknown as to their rights.
The Law Commission in 2007 put forward proposals to give the same rights to cohabiting couples as married couples so as to ‘reflect the growing prevalence and public acceptance of cohabitation.’
However there seems to be little political appetite to clarify their rights, which essentially means unmarried couples are still in legal no-man’s-land.
The recent English county court case of Pamela Curran and Brian Collins highlights the difficulties that arise when unmarried couples in England and Wales separate and it should serve as a warning to others in a similar position.
Rights for cohabitants are very limited indeed (unlike those who have married) when they part ways. Unlike in divorce there is no automatic right to make a claim against assets held in the sole name of their former partner. Due to this difficult position cohabiting couples are left dependent upon property and trusts law when their relationships break down which is notoriously difficult and costly to pursue successfully.
The rights for divorcing couples are a stark contrast to those of cohabitating couples. Divorcing couples are able to much more easily make claims against all assets including; businesses, pensions, savings and properties. Furthermore, divorcing couples are able to claim for maintenance payments in their personal capacity with cohabiting couples only being able to claim maintenance for the benefit of their children. When the children are grown up if parties are not married it is not possible to pursue a maintenance claim through the Courts.
'Sadly, the appellant found herself in the classic position of a woman jilted in her early 50s, having very much made her life with the respondent for over 30 years.The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position, but the judge was constrained to apply the law as it is'
Lord Justice Toulson in Curran v Collins.
An appeal has been granted permission in light of the above statement.
Given recent government announcements that no major amendments to the law are planned in the foreseeable future, this leaves an unfortunate position for people like Miss Curran who is left feeling a victim of laws which arguably ought to be updated to give those in her position greater protection.
The couple ran a successful business, and has been in a relationship for thirty years; however the family home and business were both legally owned by Mr Collins. Upon the relationship breakdown, Mrs Curran was effectively without any assets of her own. Ms Curran described how she had trusted that she would be provided with a "fair share" of the assets if the relationship broke down.
In order for her appeal to be successful, Ms Curran will have to show that the couple originally intended for her to have a share in the property and business – to do this, she being the party whose interest has been undocumented will have to go through the struggle of establishing that there was a joint intention for them to have an interest.
The starting point is different because the claimant whose name is not on the proprietorship register, here Ms Curran, has the burden of establishing some sort of implied trust, normally what is now termed a ‘common intention’ constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.
Word Of Advice:
Put it in writing
Whether an asset is to be held in joint names or one party's sole name, a document clearly stating what the parties intend for each one to own allows for transparency and certainty. Asserting your rights without a written agreement is fraught with difficulty, and in the absence of such clarity, the court will interpret the intention based on fairness, by looking at the behaviour of both parties during the period of ownership.
Both financial and non-financial contributions can be taken into account. But the extensive examination process of the relationship can prove costly and time-consuming and most worrying of all is that the outcome is, of course, uncertain.
The best way for anybody purchasing a property or a business with anyone else - be it a partner, a friend or a family member - is to have a formal document such as a cohabitation agreement or a declaration of trust. As such, the easiest, most efficient way to protect oneself legally against this old-fashioned and outdated aspect of property law is to record each party's intentions in a legally binding document at the outset.
This can be prepared by a lawyer to record each person's share, who has contributed what, and what will happen should the asset be sold or if the relationship breaks down. Couples should also be beware that financial liabilities can last even longer than unhappy memories.
Most people do not think to take advice or just are not aware that there are straight forward steps they can take at the beginning of a relationship to protect themselves should things not work out as expected. This can spare them considerable cost financially and emotionally if the relationship ends.
Camilla Choudhury – Khawaja LL.B Hons LL.M Barrister
