The latest case to hit the headlines concerning a high profile unmarried couple who have fallen out is the case involving Simon Brown, a practitioner of holistic health therapies and his former partner, Dragana Brown.
Mr Brown has a number of celebrity clients including Boy George and Alicia Silverstone. Ms Brown has made a claim for one half of Mr Brown’s flat in London, half his collection of classic Jaguar cars and half the royalties for two of his books. Ms Brown claims that her former partner told her that she “need not worry” about their home being in his sole name “as she was protected as a common law wife” should they split up.
Unfortunately, in English law (the position in Scotland is different) there is no such thing as a common law spouse. Cohabitees do not automatically acquire any rights against their former partners in the event of the relationship breaking down. Different considerations do, however, apply if an unmarried couple have a child or children. In this case there is a young child. It is quite clear, therefore, that Ms Brown has a right to make a financial claim on behalf of her child under Schedule 1 of the Children Act. Such a claim could include a lump sum, a settlement of the property upon her (giving her a right at least to reside in his property or have a different one rented or purchased for her), until, often, a child ceases to be in education (including degrees) and maintenance for their child. In some instances the mother whilst not legally entitled to maintenance for herself can claim a “carer’s allowance”. Additionally, if a cohabiting couple split up, then it may be the case that the partner who is not a legal owner may be able to establish an equitable interest in the property, i.e. an interest that a court would recognise.
It appears from the press reports that there was no written declaration of trust concerning the ownership of the property. Ms Brown is claiming that she is entitled to one half of the property and other assets purchased during their relationship. She relied on the agreement that she would be protected in the event of a breakdown of the relationship.
A Judgment is still awaited.
Quite apart from her claim that she is entitled to a 50% share of the property and other assets, it appears from the press reports that Ms Brown is also seeking an Order that she and their son be allowed to stay into the flat until he has finished university. That would, almost certainly, be a claim under the Children Act.
Such litigation can be extremely expensive and the case highlights the necessity for unmarried couples in England and Wales who buy a property and, indeed, other assets together, to enter into a co-habitation agreement and/or an express declaration of trust setting out what their respective interests are in the property (and other assets) in the event of a breakdown of the relationship.
Margaret Hatwood comments “If there is no documentary evidence about what was intended, then it is very difficult to predict the outcome of a cohabitation case. The courts sometimes have to decide such cases on whose oral evidence is believed. If a couple are going to live together then it is far better for the person without assets to insist on a cohabitation agreement being drawn up before they move in”. Such an agreement may not be completely binding on the courts however it does help establish what the intention between the parties was at the time. If there is a property which is owned by one party it makes sense for a declaration of trust to be drawn up. Ms Brown is fortunate that she and Mr Brown had a child. At least the court will be able to consider what solution is best for the child. However if the couple had no children then Ms Brown’s position might be far weaker. Margaret comments that she has known of cases where she has had to advise former cohabitees that they do not have a claim. Cohabitation agreements (or “Living together agreements”) do not cost much to have drawn up and they can save significant costs and ill feeling later.
The best advice for the economically weaker party is:-
- Seek legal advice before you live together.
- Obtain a cohabitation agreement and/ declaration of trust if property is owned by one party.
- If one party does not agree to enter into an agreement at least confirm your understanding of the position in writing.
- Register a notice at the Land Registry to protect your interest in the property (a land charge if the property has unregistered title).
- Do not move out of any property. If there is no option but to do so then seek legal advice before you move out.