Most cohabitants are living together under a misconception that the myth of the ‘common law marriage’ still endures. Many people still believe that after living together for a certain period they are recognised by the common law as being married to their partners and they, therefore, have the same rights as married couples.
According to Resolution, the association of family lawyers, 60% of couples who live together believe that they have the same protection as married couples if they split up. Unfortunately, they don’t. The myth of common law marriage and the fact that many official bodies refer to people “living together as husband or wife” means that many people who live together are not aware that they do not have the same rights as a married couple when their relationships end. That need not put you off living together, you just need to understand that the law when it comes to unmarried couples rights is complicated and there are things you need to be aware of to avoid problems if your relationship breaks down.
How can our cohabitation solicitors help?
Moving in with your partner is an exciting time, so it is difficult to think about what would happen if you split up. Unfortunately, it does happen and unmarried couples rights do not offer any legal protection if things go wrong. Planning on what you both would like to happen if things went wrong does not mean you are expecting your relationship to break down. It is just a sensible way to approach a huge commitment and will allow you to live with the security that should something happen to either of you, or you decide to split up, you are both in agreement on how to sort out your finances and any children you have.
If you move into a property belonging to your boy/girlfriend, you will not acquire a share in that property merely by living in it for a period of time, even if you do pay the food bills or the utility bills. However much in love you are, you should think about and discuss the “what ifs?” that can arise when something goes wrong in a relationship and think about what you would do in those circumstances.
You can ask a cohabitation solicitor to draw up an agreement, which sets out what would happen to any property, money and possessions if you split up. A cohabitation agreement can cover, for example, issues such as who pays which bills, the operation of joint bank accounts, arrangements for support of a partner who gives up work to have children, arrangements for children in the event that the relationship breaks down, life insurance, gifts made to the couple, credit cards, cars, credit agreements and pretty much anything else which affects the financial and other dealings between a couple.
Unmarried couples property rights
If you are planning to buy a property jointly with your partner, make sure you discuss and agree what will happen if one of you dies or if you split up, before you exchange contracts for the purchase of a property. If you are going to buy a property jointly with someone else, you should always see a lawyer and ask them to draw up a document called a Declaration of Trust. This declaration sets out your answers to the below questions in clear, legal language. In particular, think about:
- In whose name is the property to be registered?
- Do you want to own the property in equal shares or in unequal shares?
- What happens if one of you puts in more money by paying a bigger share of the deposit, or makes greater mortgage repayments, than the other? How will that be dealt with if one of you dies or you split up and the property has to be sold?
- If you split up and one of you moves out before the property is sold, who pays the mortgage and other bills pending the sale?
- What if one of you wants to “buy out” the other’s share? How will the property be valued and how will the valuer be chosen? How long should the person who wants to stay in the property be given to raise the necessary funds?
- Assuming that you do not split up and everything goes well, how will mortgage payments and other bills be shared?
- What happens if you have children and one of you stops working to look after them? What financial arrangements will you put in place?
Cohabiting – what to do when it goes wrong
You might think the rights of unmarried couples living together are similar to married couples if the relationship breaks down or one of you dies. However, there is no such thing as a common law marriage and the legal rights for unmarried couples are not the same as married couples, no matter how long they have lived together. You cannot, for example, claim maintenance from your partner (other than child maintenance if applicable) even if you have lived together for many years.
If you live in a property that is held in joint names with your partner, unless it is clear from an agreement or in the title documents of the property if a property is in joint names, the law assumes you have equal shares.
If you live in a property in your partner’s sole name, it may be that you have an entitlement to a share in the property but the law surrounding this is complicated. If you are unable to agree upon the sale of and division of the net proceeds then you will need to apply for an order determining what share you have. Before you can be advised on the merits of making any claim, you will need to give consideration to the following as these are the factors which the court will take into account:
- What discussions took place prior to and during the purchase of the property with your partner include the dates, times, locations of any such discussions. Were any third parties present? If so, who?
- Who paid for the deposit on the property? If it was borrowed, who was it from? If it was a gift, who was the money from and why was it given? If it was funded by savings, whose were they?
- Who paid the legal fees, surveyor’s fees and for any other purchase-related expenses, such as stamp duty? Was there any agreement in relation to those funds?
- Who made the mortgage repayments, and from what funds were they paid, e.g. your account, your partner’s or a joint account? If it was paid from a joint account, how was that funded? Who paid the other household expenses?
- Were any structural repairs or alterations carried out, e.g. an extension, new roof, etc? If so, who paid for them and from what funds? Were there any discussions between you as to the basis on which such payments would be made?
- Who paid for other expenditure such as holidays, furniture, the children’s clothing and equipment etc. (if relevant)? What was the agreement between you?
Once your cohabitation solicitor is in possession of all of this information, he or she will advise you on how to proceed, whether you can make a claim against your partner for an interest in the property and for how much. If you are so advised then you will need to make an application under the Trusts of Land and Appointment of Trustees Act 1996 for an order declaring the extent of your interest in the property and seeking an order for the sale of that property.
Once the Court returns your claim form and the Particulars of Claim these are served on your former partner. Your former partner must then file a formal court document, which is known as a defence within 28 days. If appropriate, your solicitor will prepare another formal court document, which you must file, dealing with your former partner’s defence. There will then follow a process whereby any relevant documents will be disclosed. Once that has been done, the matter will be listed for a final hearing several months ahead when a judge will determine your application. A suitably qualified barrister will represent you at the final hearing.
The final hearing could be a year or more from the start of your case if you are not able to reach an agreement. This is because bringing court applications is a lengthy process and can be subject to delays. These delays can be by the court, delays by your former partner in providing information and documents, or in taking steps in the court proceedings.
All in all, this is a very long and costly process and can be easily avoided if some thought is given to your legal position prior to cohabitation. You can take steps to protect your legal position by entering into a cohabitation agreement or, even better, a declaration of trust as set out above.