Cohabitation Disputes

Six out of every ten couples who live together believe that they have the same protection as married couples if this split up; this is incorrect.

The terms “common law marriage” and “common law husband or wife” is a myth. People get referred to as “living together as husband or wife” but are unaware that they do not have the same rights as a married couple when their relationship ends. This includes whether co-owners of property are unmarried partners, business partners or friends.

By speaking with our experts you can learn more about your situation and the law of cohabitation disputes in Hampshire and Wiltshire.

Planning to live together

The last thing on your mind when you move in together is what happens if you split up, but 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’s a sensible way to approach a huge commitment and it 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 the arrangements for any children you have.

Things to think about before you begin living with someone

If you move into a property belonging to your partner, you will not acquire a share in that property 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.

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. In particular, think about the points below under the heading “Declaration of Trust”

Planning for your future

It is very important to understand that living with someone does not have the same legal consequences as being married. The situation is legally much more complicated and uncertain. It is worth considering the options below and speaking to a lawyer about your individual situation.

Declaration of Trust

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 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 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?

• What if a relative provides money towards a deposit – how is that to be repaid?

If you decide to get a cohabitation agreement, you would not need a separate Declaration of Trust, as these points can be covered in the cohabitation agreement.

Cohabitation agreement

You can ask us to draw up a cohabitation agreement (also known as a living together 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.

Warning – You can find DIY cohabitation agreements on the internet. However, be aware that for it to be used in court, the language needs to be legally correct and you have to show that you both took independent legal advice before signing it.

Your rights when living together

If you are living with someone without being married you might think you have similar rights to married couples if the relationship breaks down or one of you dies. You would be wrong. There is no such thing as a common law marriage and cohabitants have very few rights that arise out of the relationship. You can’t, 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 in your partner’s name

You don’t have an automatic right to any share in the property. The law says that the property belongs to the person in whose name it is registered.

In a nutshell this means that you don’t have any say in whether or not the property is sold and, if you split up, you would not be entitled to any money from the property, nor would you be entitled to stay in the property (unless you have children, see below).

To have a claim to any part of the property, even if you contributed financially, you would have to show that you both agreed that you should have some rights to it (known legally as a common intention). This is a complicated area of trust law and may often involve going to court, which can be costly. You are strongly advised to seek legal advice if you are in this position.

The strength of your case will depend on what evidence you have but it can be very difficult, costly and time consuming to establish such a right.

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 and your partner have children together

The father will only automatically have parental responsibility if he registered as the father on the birth certificate after 1 December 2003. Otherwise, he needs the formal written agreement of the mother or an order from the court

If one of you wishes to move to a different country with the children, consent of the other parent (assuming they have parental responsibility) or permission of the court will first be required.

You may have financial claims on behalf of your children. You and the children might be able to stay in the house whilst they are dependent, regardless of who owns the property. If there are sufficient capital resources available, the court can make orders for one parent to provide a home for the other whilst the children are growing up. The standard terms of this sort of arrangement will be that once the children have ceased to be dependent (usually once they have finished full-time education, which can include university), the capital is returned to the parent who provided it. Other lump sum payments can be awarded for specific capital needs (such as furnishing a home or buying a car).

If your partner dies and has not made a will

You are not entitled to any part of their estate unless you jointly and equally own the property, in which case, it would pass to you automatically. Otherwise, your partner’s estate will go to their next of kin. This could be a spouse if they have never divorced. If your partner has children, their spouse would get the first £250,000, personal possessions and income from half the rest. The remaining half would go to their children, who would then get the other half when the spouse dies. If your partner is divorced or has never been married, all their property would then go to their children or other relatives if there are no children, meaning you could lose your home.

If you own your property as “beneficial tenants in common” your partner’s share will go to his next of kin as above. You might have to sell the property to pay them their share or raise money to buy them out.

If you are left with nothing, you would have to make a claim against your partner’s estate on the basis that you lived together for two years prior to the date of death or that you were wholly or partly dependent on them. This can be difficult, costly and time consuming.