Connect Article July 2024
Cohabitation is the term used when a couple lives together, maybe as a family unit with children, but that couple is not married, nor in a civil partnership.
When a cohabiting couple separates, how do they work out their arrangements for children, and how are the assets of the relationship divided if they separate?
The Common-Law marriage myth
A prevailing misconception about cohabitation is that it affords the same legal status as being married. Unfortunately, it does not, no matter how long you have been together.
However, the myth that a couple can become “common law wife” and “common law husband” continues. These terms carry no legal weight, so a separating couple cannot automatically rely on the asset division principles used in divorce proceedings.
Cohabitation agreements
If a couple wishes to cohabit, but do not want to marry, each should take legal advice and consider a cohabitation agreement, recording:
- If a property has been bought, whose name(s) the property was bought in and whether the couple are “joint tenants”, or “tenants in common”;
- The amount paid by each party towards the deposit and how much was borrowed;
- How the mortgage payments will be divided;
- What will happen if the property is sold.
Children
Unmarried parents can register a Parental Responsibility Agreement with the Court if they were not married at the time of the child’s birth. This enables the father to acquire Parental Responsibility (PR) for the child if he has not acquired this by operation of law. Joint PR is already in place when the parties are married.
If a couple is not married and a financial claim needs to be made regarding maintenance for children, Schedule 1 of the Children (Jersey) Law 2002 is the starting point, covering financial provision for children.
What the Courts say
In Jersey, Flynn v Reid [2012] JRC100 (where the parties had an agreement), recognised the challenges faced by separated cohabitees and the Court: “How to reach a fair result in circumstances where a couple choose to live their lives together outside the institution of marriage, which the law recognises, and nonetheless seek the resolution of the law in relation to their financial matters when they have separated.”
The English courts also wrestle with the division of assets when a cohabiting couple separates, with Stack v Dowden [2007] UKHL 17 reaching the House of Lords, and its successor, Jones v Kernott [2010] EWCA Civ 578, being heard by the Supreme Court.
In Flynn v Reid, the Royal Court confirmed that it could not create new law regarding cohabitation at that time. Rather, it was the legislature which could give “proper and full consideration to the boundaries of the potential for such claims.”
In the meantime, cohabitees should take advice, and sign a cohabitation agreement.
This article is intended for guidance purposes only and does not constitute legal advice.