Cohabitation / Living Together
There are many aspects of potential and real difficulty for cohabiting couples which can create problems before, during and (sadly) at the conclusion of the relationship. These difficulties often concern arrangements for the sharing and division of land and property and require an investigation of the rights which may have accrued to one party or the other, even though the property (usually the family home) has not been registered in the joint names of the couple at the time of purchase.
One of the difficulties that solicitors often hear from individuals when a cohabitation relationship breaks down is the fundamental misunderstanding that by virtue of cohabiting with someone that this somehow translates into a ‘common law marriage’. This is a myth and has no basis in law whatsoever. No automatic right is accrued by one party or the other (in the course of cohabitation) to the other’s property or assets, simply as a consequence of living together.
On many occasions we hear sad accounts from the weaker financial party, when they tell us that they expected, after a long period of cohabitation, to be entitled to maintenance payments from their ex-partner and to benefit from their ex-partner’s pension. There is no provision in law to facilitate this, and the financial cost to that person can therefore be very considerable.
Where cohabitation comes to an end, there is no recognised legal process that the parties to the relationship can go through. Parties who have been married to one another will go through the divorce process and have access to a wide range of financial claims under the Matrimonial Causes Act 1973, against each other. No such provision exists for cohabiting couples. It is not therefore possible to ask a court to intervene to make financial orders, in the way that a court can do when a married couple divorce, except in relation to property and children, as set out below.
Cohabiting couples do not have a legal claim against anything owned by the other party unless it can be proved that they have acquired a specific interest in it.
If the family home that the cohabiting couple have lived in is registered at the Land Registry in joint names, then either party can apply to the court for an order. However, this can often cause significant anxiety to those unaware of the finer points of the law relating to Trusts and Land.
At the point when the property was purchased by the cohabiting couple there would have been two ways in which the couple would have ‘held’ the property. Either they would hold as joint tenants, or as tenants in common in unequal shares.
If the couple purchased the property as joint tenants then the proceeds of sale will be split equally between the parties, unless of course there is a dispute which would require the Court to determine an appropriate division. If the cohabiting couple purchased the property as tenants in common then, providing the appropriate documentation was drawn up at the time of the purchase of the property, the sale proceeds would be divided between the parties according to their stated interest in the property.
Problems often arise where one party or other does not wish to sell the property. If this is the case then the other party can make an application to the Court under the Trusts of Land and Appointment of Trustees Act to seek an order for sale. It should be borne in mind that where such application is made, the Court does have power to postpone an order for sale where, for example, there are minor children who require to be housed.
Further complications arise where the property (usually the family home) has been held in the name of only one of the cohabiting couples. In this event the individual whose name does not appear on the Title Deeds will need to look closely to see whether there is any evidence of an implied, resulting or constructive trust arising in their favour, which could lead to a court declaring that the individual does have an interest in the property, even though the documentation would suggest otherwise. If an application by one party is made in these circumstances then a hearing before a Judge will be set up (called a Directions Appointment) and the Judge will order that a valuation be obtained of the property. Statements from both parties will also be ordered. If it is not possible for the parties to reach agreement then a full hearing will be ordered by the Court to enable both parties to give evidence concerning their own individual understanding of the ‘arrangement’ that existed. Such a hearing could last for a day or more, at the end of which the Judge will make a decision in the form of an Order. As the costs of litigation can be very expensive, it is in both parties’ interests to reach an agreement.
Where children exist, within the cohabiting couple’s relationship, then it is open to either party to make claims against the other under Schedule 1 of The Children Act 1989 on behalf of the children for capital and income. This could result in an order being made against the stronger financial party to provide a home for the children to live in with the other party during the age of their minority. However, while this will provide the parent with whom the children are going to live with a roof over his or her head, this would only provide temporary shelter for that adult as once the child or children have reached the age of majority, that party’s right to live in the home would be taken away.
Cohabiting couples should consider entering into a cohabitation agreement which would set out the financial basis of a separation should this occur in the future. The agreement would set out, with clarity, who owns the property, who is to pay for the outgoings on the property, who will undertake to maintain the property, what each party owns and what it is they are each bringing to the relationship, who would own the contents of the property and what will happen in respect of all of these aspects should the cohabitation cease. Importantly, the proposed arrangements for any children could also be set out in a cohabitation agreement.
Being forewarned is to be forearmed, and Breakthrough Family Law can assist you with any or all of these matters.Call Breakthrough Family law on 01494 776696 for consultations in Beaconsfield, Berkhamsted, Harrow and Mayfair, London.
During weekends or if you have an urgent matter, please call us on 07973 955775
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