Married | Not married Article continues after advert | |
Property rights and transfer(s) | Yes. To achieve fairness, irrespective of legal and beneficial ownership or financial contributions. | Depends on strict analysis of legal and beneficial ownership based on agreements and financial contributions. |
Capital payments (lump sum) | Yes | No |
Pension share | Yes | No |
Spousal maintenance | Yes | No |
Child maintenance | Yes | Yes |
Instead, a separating cohabitant has to craft a sustainable claim from some or all of the following diverse sources:
- Express declarations as to property ownership.
- In default of express property ownership, a close analysis of whether the legal title accurately reflects the ownership of the property, through an analysis of whether the parties had a common intention as to the shares in which they would own the property, and if so, what that common intention was.
- Schedule 1 of the Children Act 1989, where there are children, under which capital provision can be made for the benefit of children during the minority or education, returning to the payer at the end of the relevant period.
- Finally – and really a last throw of the dice – whether there are available any “estoppel-based” arguments, where a promise made by one of the parties has been relied on by the other party to their detriment.
By comparison to financial proceedings on divorce, where the evidence is largely valuation-driven and where legal costs generally come out of the family pot, litigation between former cohabitants is primarily fuelled by competing narratives and, because the litigation is governed by the civil procedure rules, the “loser” generally pays the “winner’s” costs.
In divorce litigation, penalising a party by requiring them to pay some of the other spouse’s costs from their award is rare, even where their legal arguments have not succeeded. This is, in part, because courts are mindful of a party’s irreducible needs.
It is the opposite in litigation involving former cohabitants, where the courts will not hesitate to order the loser to pay the winner’s costs, even where this means the resources available to the losing party to meet their irreducible needs are further eroded.
At the point of determining whether or not an adverse costs order should be made, the court is needs blind. This constitutes a significant risk to a litigant.
Nor can a cohabitant in Trusts of Land and Appointment of Trustees Act litigation apply for an order that the former partner pay the legal costs of the litigation, thus constituting a further disincentive to litigating.
In financial proceedings on divorce, ss 22ZA and s22ZB of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LSPO) allows a spouse to apply for an interim order that the wealthier spouse funds their legal costs.
The success of an LSPO application requires the satisfaction of certain criteria (no resources oneself, no option of commercial borrowing and an unwillingness on the part of the instructed solicitor to act without funding) all of which means that obtaining an order is not straightforward; but the court has the power to make interim orders that allow the financially weaker party to operate on the same playing field even if it is not necessarily level.
An uneven playing field
There is no equivalent order for which a cohabitant may apply. Resourceless cohabitants can easily find themselves at the mercy of the resource-rich and resourceful former partner.
It is the writer’s experience that financially savvy individuals, backed by sophisticated lawyers, are well aware of this hotch-potch of legislation, case-law and costs risk and deploy their superior knowledge of the (lack of codified) law to their significant financial advantage.
Most family lawyers will have been asked by a client how best to protect their wealth from their partner and all of them will have said, “Easy – don’t get married.” Such a decision is not problematic where both partners understand its consequences and choose to remain in the relationship.
