The principle of a common law spouse is not recognised in English law. While those that have lived together for some time often believe that should their relationship breakdown, they will have legal rights similar to those of married couples, this is simply not the case.
If there are no children, on separation the parties do not have a claim to capital or maintenance, and jointly owned assets are divided in accordance with their respective legal ownership. There are some cases (and these tend to focus exclusively on the family home), whereby it is argued that one party to the relationship has a greater interest in the property than the legal ownership records or that they have a financial interest in the property owned in the sole name of the other. Such arguments tend to arise whereby one party has contributed to the initial purchase of the property, undertaken significant works that improve the property’s value or acted to their detriment on the understanding that they would have an interest in the property.
Those pursuing such claims usually rely on the provisions of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). These claims are often complex and technical.
Where children are involved, it may be possible to bring a claim for financial provision on behalf of a child, in addition to any assessment made by the Child Maintenance Service (CMS). These claims are limited to the provisions of Schedule 1 of the Children Act 1989 and permit the court to make the following types of order:
- Child maintenance – in cases where the CMS has made a “maximum” assessment, the court can make a top-up maintenance order.
- Capital lump sum – a one-off payment to meet specific needs of the child.
- Transfer or settlement of property – the court may order the use of a property to provide a home for the child while they are a minor, with a provision usually that the house is then transferred back to the parent who provided it.
It is common for a parent pursuing a claim under Schedule 1 to also bring a TOLATA (Trusts of Land and Appointment of Trustees Act 1996) application, especially where property ownership is disputed or needs clarification.As specialist solicitors with significant experience dealing with such issues we are able to provide you with the best advice to ensure that you can make an informed decision about how you want to bring about a solution to the issue of financial provision for you and your children.
Read our articles on Unmarried Couples and relationship breakdown.
