Can you remember everything your partner has ever said to you about money?
Have you documented all the financial contributions you have made since the relationship started? Have you kept all the emails you and your partner have exchanged about your finances? Of course not.
If you are married to your partner, and your marriage breaks down, the lack of documents will not matter very much because the Matrimonial Causes Act 1973 is broadly protective of your interests and establishes a presumption that – where resources allow – your financial needs will be met.
But if you are not married to your partner, discussions, promises and half promises could be crucial evidence in determining what – if any – financial claims you have when your relationship breaks down.
The need for reform of this outpost of family law is currently being trumpeted by the Labour party. That this is a contentious area of potential reform is well known.
This article explores a less well-known feature of such cases, which is that the current (so-called) “system” of the law of cohabitation (which in reality is no system at all) facilitates economic abuse.
The divorce capital of the world
It is well known that, on divorce, a court can make substantial financial provision for the weaker party. It is not for nothing that London is called the divorce capital of the world. The court conducts a two-fold exercise on divorce – first of all in calculating what the assets are, and then dividing them.
The court is compelled by statute (the Matrimonial Causes Act 1973) to consider the “needs” of each party and directed by case law to produce (where the money allows) an outcome that is “fair”.
In cases where the available money exceeds “needs” the matrimonial assets – broadly, those built up by the parties during their marriage – will be shared equally.
This does not mean that the process is straightforward, inexpensive or quick; but it does mean that where the resources exist, each party will emerge with a settlement that meets their needs, typically expressed in housing and income (whether from a party’s own resources or maintenance).
The Matrimonial Causes Act governs both divorce and financial division. It has been interpreted, largely consistently, by a body of case law since the seminal case of White v White in 2000.
By comparison, at the end of a cohabiting relationship, the parties have to look to an unsatisfactory amalgam of statute, precious few case authorities and the evidence of what the parties may have said to each other over many years.
In many cases even that will not help. No cohabitant will ever be able to claim maintenance for themselves, capital for themselves, or a share of their former partner’s pension, even if the entirety of the pension pot was built up during their relationship.
The following table summarises the stark contrast between married and non-married provision.
