There is a longstanding misconception held by a large proportion of the population that if two people of the opposite sex live together that there exists a common law marriage and that the parties are a ‘common law husband’ or ‘common law wife’ and that certain rights and duties attach to that condition. The term ‘common law marriage’ is used and applies only in extra-ordinary and rare circumstances and notwithstanding its usage in common parlance means nothing so far a co-habituees in the UK are concerned. There are however certain legal applications that can be made to the courts principally relating to property and domestic violence for any couple who reside together, including same sex couples, that have been described as a branch of family law (UK) called cohabitation law.
If the parties are formally married there is a raft of specific legislation generally referred to as family law (UK) that will assist in determining the property rights of individuals once the marriage is terminated or the married couple decide that they no longer wish to live together however in the case of a non married couple of the opposite sex there is no such specific legislation to help resolve the problems and in these cases recourse must be made to the general law
Most often the main bone of contention between couples is the home that they share and whilst section 25 of the Matrimonial Causes Act 1973 will, in the case of a married couple, effectively determine who ought to own it as opposed to who actually does own it, the same law does not apply to those who merely cohabit. In the case of a non married couple there is no cohabitation law and in these circumstances they must rely on the law of property and the law relating to trusts to obtain a fair and equitable division of disputed property.
In the case of a dispute relating to property where one person has legal title to the property which is registered in their sole name and the other party requires a court declaration of their share of that property there are two principles that may be considered by the court to assist in their determination :-
- Resulting Trust:
This arises where the registered title to the property is in one persons name and the other party has made a contribution to the purchase price of that property that was not intended as a gift or loan to the other person.
- Constructive Trust:
In cases where it is not possible to show the existence of a resulting trust it may be possible to show that a constructive trust has arisen in one of two ways :-
1. If there is an agreement between the parties or if one party has made a promise to the other, as to who owns or will own what share of the property in the future and that agreement is in writing and signed by the person making the promise then an ‘express trust’ may arise whereby a court will apportion the property rights between the parties provided that the promise has caused the receiving party to act to their detriment as a result of the promise being made.
2. In cases where there is no ‘express trust’ the court will consider the intention and conduct of the parties and in particular their contribution both physical and financial to the running of the home and whether or not there was a common intention to share the property.
Our nationwide network of specialist family law (UK) lawyers will give initial free advice on all matters relating to cohabitation law without further obligation. If after talking to us you decide not to take matters further you are under no obligation to do so and you will not be charged anything at all. anything at all.