A change in the air for cohabitees?

Year Published: 2012

A recent decision in a legal case in Scotland has resulted in one party in a cohabiting relationship being successful in a claim for capital against the other, following the breakdown of the relationship.

The court awarded one party a capital sum as compensation for the economic disadvantage that she had suffered as a result of the relationship and also took into account her contributions to the relationship as a whole.

For many years family lawyers in England have been seeking changes to our law, as in England, unless you can prove a direct contribution to property – as opposed to towards the relationship as a whole – you may well get nothing, even after many years of living together. Many cohabitees are grossly disadvantaged by the existing system as they have not been able to accrue capital due to looking after children and being a homemaker.

The law is different in Scotland, where legislation provides for both parties. So is the law going to change here in England? Well probably not in the foreseeable future I’m afraid. This debate has been running for years and whilst it appears that most people are unhappy with the law as it stands (apart from the property owning person of course!), no-one has actually forced the changes through. Many religious groups are also opposed to any changes as they consider that it undermines the sanctity of marriage.

At present in England, the only way to stake your claim would be to either have a cohabitation agreement, a trust agreement or prove direct contributions to an increase in value of property, something which is not easy to do.

In certain circumstances it would also be possible for a mother to seek to remain in a house whilst children are under 18 years, but still the mother would receive no capital sum. The law is very different if you are married of course.

If you need any assistance with this or similar issues, please contact a member of the Family team on 01625 442100.

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