Jenell Gibson
Student, Hugh Wooding Law School
A common feature of our diverse culture is what is known in law as “cohabitational relationships”. That is where two people have been living together as man and wife without having gone through an official ceremony of marriage.
The Cohabitational Relationships Act was passed in 1998 and it recognised the existence of such informal unions. It granted to these people many of the same rights in relation to property and maintenance which a wife or husband in a formal marriage ordinarily possess.
Qualifying as a cohabitant
To establish a cohabitational relationship, the parties must be of the opposite sex and must not be married to each other, but must have lived or continue to live together as husband and wife. They must either:
(1) Have cohabited for no less than five years;
(2) Have a child from the relationship; or
(3) The person applying (“the applicant”) made substantial contributions to the home, whether financial or non-financial.
Only one of these conditions needs to be satisfied to qualify.
After the breakdown of the relationship, the application must be made within two years. However, this period may be extended if it causes hardship.
Property settlement and maintenance
The court may order that one party be given a share in the property owned if the applicant has made substantial contributions to the home. The court also has the power to order that maintenance be paid to the applicant if he/she cannot support him/herself properly as a result of having to care for the child.
Maintenance may also be granted to allow the applicant to increase their income by pursuing a training programme or educational course.
The courts will consider a variety of factors in making the order, including: the parties’ age, health, income and resources; the duration of the relationship and whether the applicant is in a new cohabitational relationship or has since married.
The courts have also laid down the following principles:
• ‘Living together’ does not necessarily mean living under the same roof, however, the other elements of a cohabitational relationship must exist;
• The five-year period must be continuous, however, small breaks may be discounted; and
• There is no requirement for both parties to be single; a cohabitational relationship may exist despite one or both parties being legally married.
An Alternative Route
Where the person cannot qualify as a cohabitant under the act because, for example, they have only cohabited for four years, this person may still be able to obtain a share in the property if he/ she can establish a “common intention constructive trust”. They must show that there was an intention that they would have a beneficial share of the property.
This is done by showing evidence of a direct intention (expressed words used by the other party that he/she would have a share of the property) or an indirect intention (financial contributions made which allowed the other to acquire the property eg mortgage payments). The person must also show that they acted on that intention to their detriment.
It is important for people to recognise that on the breakdown of such relationships the law does in fact provide assistance. Provided that the requirements are satisfied, such parties may be granted rights over property and/or maintenance where this is fair.
This column is not legal advice. If you have a legal problem, you should consult a legal adviser.