What to do if a partnership breaks down

Published on Friday 27 February 2009 19:35

Q: I have been living with my partner for five years and we have a child together. We have been fighting a great deal lately and I am considering whether or not to stay in the relationship.

I sold my flat and had moved in with him and the house and mortgage are both in his name. We have one joint account for bills and the mortgage, which I paid into until we had our baby, when I stopped working.

A friend thinks that as we live together we are "common law man and wife", meaning I would be entitled to a share of the house if we separate.

I am very confused as to what to do and would welcome your advice.

AP, Inverness

A In Scotland there's no such thing as "common law husband and wife".

The fact that you live together in an enduring relationship means that you are cohabitants and the law relating to this changed in 2006 to give cohabitants more rights in each other's property in the event of separation or the death of one of the parties. Previously, neither had an automatic claim in the other's property nor their estate on death.

Cohabitants who have been economically disadvantaged by the relationship ending can apply to court for a capital sum from their former partner. The law in this area is very new, however, and there is little precedent as to how the courts view such actions. As the house is in your partner's name and he is paying the mortgage, it is very unlikely that you would get much by way of a capital sum from him – you are not entitled to half of the equity as a spouse would be.

You may be successful in obtaining an award from the court as you have given up your job in order to care for your child. However, this is very much a balancing exercise and you may be considered to have been economically advantaged by the relationship as your partner paid for household costs whist you were not working. Any application to the court must be made within one year of separation.

I note that you sold your flat when you moved in with your partner. If you have capital from the sale then the court will take this into account as to whether you have been economically disadvantaged by the relationship ending.

The joint account is a joint asset and you are entitled to half of the balance as at the date you separate. The same applies to furniture and other items in the house that are used for joint domestic purposes. However, you have no rights in his pension, investments or similar. On divorce, for example, there is a presumption that all property be split equally, but this does not apply to cohabitants. Husband and wife have a duty to aliment (maintenance) but cohabitants do not. Accordingly, you would not be entitled to a monthly payment from him although the court might award you something if thought appropriate.

You both have a duty to aliment your child, though, and if this is not capable of agreement then you should contact the Child Support Agency.

&#149 Nicola Gilchrist is a solicitor in family law at HBJ Gateley Wareing. If you have a question you need answered, write to Jeff Salway, Personal Finance Editor, The Scotsman, 108 Holyrood Road, Edinburgh EH8 8AS or e-mail: [e-mail]. No responsibility for loss occasioned by any person acting, or refraining from acting, as a result of these answers can be accepted by HBJ Gateley Wareing or The Scotsman Publications Ltd.