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31/10/2006

Divorce for the unmarried.

Interesting to see the Government publicising proposals for setting up property distribution mechanisms for ex-cohabiting couples somewhat ahead of the Law Commission’s final report.

The Guardian’s paper account, if not its online report, compared the proposals favourably with the difficult, complex and expensive route of a claim in equity on the ex-home by an ex-partner without title, which requires some contribution to deposit, mortgage or household expenses, not to mention evidence of common intention. (I’ve got an equitable interest case underway at present).

I wonder. Clearly the equitable route is difficult, complex and expensive, but how much simpler will the new routes be, specifically for childless couples, whom the Govt. have apparently decided to include? The Law Commission hasn’t made its mind up about this yet.

Firstly, there must be an application, rather than a semi automatic consideration of property and assets, as with divorce. Second, the ex-partner claiming a share in property held by the other must show either a significant financial disadvantage to themselves or financial advantage to the other in their role and contribution to the partnership.

Granted, these terms are a lot looser than the legal and evidential demands of the equitable route, but the first rush of case law would, I suspect, rapidly place some fairly tight (and probably elaborate) strictures on what consititutes disadvantage or advantage in this situation and how it is to be evidenced.

Just earning less than, or being financially supported by the other would probably not be enough. Nor, probably, would be giving up or selling a property to move into a property owned by the other party (depending on what was done with the resulting money). It may be that giving up a career in order to support and develop the other person’s career could be counted, but this would be difficult to evidence in many cases, I would imagine.

Although potentially broader than equity for childless ex-cohabitees, then, I suspect that this will not end up much less complex, difficult and (therefore) expensive.

Where children are involved, matters are likely to be more straightforward. Although an application is also involved, this element of the proposals gets a mildly approving two cheers for addressing a growing problem. We frequently get clients insisting that they are ‘living as man and wife’ or common law married, who are very distressed when told that this means nothing at all.

It remains to be seen if the Courts will gain the same powers over redistribution of property, including tenancy rights, as they have around divorce.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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