Many clients are surprised when they learn there is no such thing as a common law husband and wife. To avoid any dispute, it is a good idea to have an agreement at the beginning, setting out what should happen should the relationship end. An agreement can be prepared before you start to live together or at any point during the relationship. The agreement could consider such things as the home; money and paying bills; pensions; personal possessions and children.
If there is no cohabitation agreement, any financial claim is likely to be under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA.) The act considers whether a cohabitee has acquired an interest in the other’s property. If the cohabitee who owns a property does not make an express declaration that the other has a share the other has to claim that they have acquired a share using one of the following:
Contributed in money or money’s worth and there was a common intention;
Can show a common intention that there is a beneficial interest;
That you have been misled into believing that you had an interest to your detriment.
If you have had children together and there is no cohabitation agreement, in addition to child support through the Child Maintenance Service, there could be a claim under Schedule 1 of the Children Act 1989.
My client had cohabited with her partner and they had three children together. When the couple separated the father wanted to limit the funds he provided to my client, even though he lived in a property worth over £2 million and she was living in a small terraced property. She had accrued debts because the father regularly reduced the child support payments.
Although we tried to attempt mediation, the father would not engage. He was also very reluctant to disclose any financial information. There was an application under schedule 1 of the Children Act. In advance of the final hearing the parties agreed a lump sum settlement.
My client was able to settle her debts, full child maintenance was paid without any deductions and the school fees were paid by court order. The order succeeded in providing stability and certainty for both my client and her children.
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