Cohabiting with a partner rather than getting married is becoming an increasingly popular lifestyle choice with each year that passes.
According to the Office for National Statistics, over the last decade, the number of cohabiting families in the UK has increased by 22.9%.
Whilst there are plenty of advantages to cohabiting, one area that could be a cause for concern is the legal rights of cohabiting couples.
In the eyes of the law, married couples currently have more legal rights than those cohabiting.
The rights that you have as a cohabiting couple depend on your circumstances.
Some of the factors that affect the rights that you have as a cohabiting couple include:
- Whose name property is registered in
- Whose name is on the birth certificate of any children involved?
- What financial contributions have been made by each party?
- If savings are in a joint bank account
- Whether they have made a Will
- Whether you have made either a Cohabitation Agreement or a Declaration of Trust
Whilst it may not seem very romantic to discuss what will happen to any assets if you split up or if one of you dies, if you choose to cohabit, having these discussions and ensuring that both of your rights are protected from the start is a practical approach to take and could save a lot of hassle and heartache later down the line.
Unmarried couples often believe that if they live together (cohabit) for long enough, they will acquire similar legal rights to those of married couples and that they will become what is colloquially referred to as a ‘common law wife or husband’.
However, in English law, there is no such thing as a ‘common law spouse’. When resolving disputes between cohabiting unmarried couples, the Courts do not consider the length of time that a couple has lived together, even when one of the parties has contributed to the joint household by raising children and running the family home.
In England and Wales, cohabiting couples do not gain any legal rights to each other’s assets simply by being in a relationship for a set length of time.
The property rights of cohabiting couples can be complex to navigate. Unlike married couples, cohabiting couples cannot automatically claim ownership over the property, no matter how many years they have been living together unless they have a joint tenancy agreement together. This can cause problems when cohabiting couples split up, or if one party dies.
The property rights of cohabiting couples depend on several factors including who owns the property and the financial contributions that each party has made.
Let’s take a look at what rights cohabiting couples have in different property ownership scenarios.
Cohabiting couples with a joint tenancy agreement jointly own the property and have equal rights and entitlement to the property and any proceeds from the sale of the property.
If one party dies, then a joint tenancy agreement means that the property is automatically inherited by the other owner.
Tenancy in common
If a property is owned by ‘tenants in common’, it means that each party owns shares in the property. The split of these shares may be equal or unequal, sometimes shares are split unequally if one person is going to be paying more of the mortgage or has put down a larger deposit than the other.
The shares in the property are owned separately and can be sold on or left to whomever the owner wishes in their will.
What happens when the property is owned solely by one person?
Sometimes, cohabiting couples live in a property that is legally owned by just one of them.
In these circumstances, if the cohabitee who is not the registered owner of the property has a right to live in the property or to a share in the property, then making a Declaration of Trust officially declares their beneficial interest in the property and can help to prevent disputes arising later down the line.
Implied or resulting trust
If there is no trust deed, the person who is not named as the registered owner of the property needs to prove their entitlement to an interest in the property.
Examples of how a resulting or implied interest in a property can be claimed might be:-
- If the owner of the property told you that you have an interest in the property when it was purchased. Alternatively, they may have told you when you moved in with them. Demonstration of a financial contribution towards the household bills and/or the mortgage is also required.
- By establishing an implied intention for you to have a share in the property. If you have made contributions towards the purchase price of the property, the mortgage, or the initial deposit for the property, these can all be evidence of an implied intention. Pooling finances and paying all household bills and outgoings from that account can also be used as evidence of an implied intention.
- Proving that you have made a substantial contribution to the property, (ie. by paying for a home improvement) can also be a way of establishing an interest in the property.
To gain Constructive Trust, the court must conclude that there is evidence that there was clear intention or agreement that the party who does not own the property would gain a beneficial interest in it.
How We Help With Cohabitation Disputes
Problems can arise between cohabiting people if they decide to go their separate ways but disagree on what should be done with property or assets owned jointly or by either one of them.
When married couples separate there is a set process for dividing up their assets, but there is no equivalent for cohabiting couples. Instead, each asset must be dealt with separately.
Some common types of cohabitation disputes that we regularly deal with here at Freeman Jones Solicitors include:
- One party refuses to cooperate in the sale of a jointly owned property
- One party refuses to move out of a property
- Disputes over ownership of loans or gifts
- A person claims a financial interest in a property they do not legally own
At Freeman Jones Solicitors our team are on hand to advise and guide you on the following matters:-
- Your rights of access and occupation of a property
- How to force the sale of a property without the other party’s consent
- How to purchase the other party’s interest in the property
- The evidence required to prove a party’s interest in a property
Our team of specialist solicitors here at Freeman Jones Solicitors Chester are experts at handling cohabitation disputes, for help or advice with a dispute, get in touch by giving us a call on 01244 506 444.
Documents for unmarried or cohabiting families
To avoid the type of disputes discussed above, parties can commit to a Declaration of Trust or a Cohabitation Agreement. These legal agreements are useful tools for formally setting out on record what is agreed between the parties at the start of or during their relationship.
They can also be useful for family members or friends living together.
Declaration of Trust
A Declaration of Trust is usually used to answer questions about who has a right to what proportion of a property.
They are commonly used to protect the rights or interests of a person who is making financial contributions to a property that they’re cohabiting in but are not the registered owner of.
A Declaration of Trust may also be used by tenants in common to agree to each owner’s rights and obligations. Eg. Can an owner leave their share to someone other than the other owner in their will?
A Cohabitation Agreement is more comprehensive than a Declaration of Trust. They are usually used by cohabiting couples to agree on a broad range of rights and responsibilities regarding ownership of assets, their financial obligations whilst together, how assets would be split, and how children would be supported if the relationship broke down.
Expert legal advice for resolving Cohabitation Disputes
This can be a very difficult area of law. If it affects you because you are in cohabitation disputes, or if you just need to discuss your options before embarking upon a separation, then phone us now for specialist advice in this area.
We aim to provide practical straightforward advice, and if possible, reach an agreement with your partner or friend amicably without recourse to the courts. If an amicable settlement is unlikely or cannot be reached, our team are also able to provide specialist Courts representation.
Legal advice is often best sought early so that your home and other assets are protected as soon as possible.
For further legal advice surrounding a cohabitation dispute, get in touch with our team of Chester-based, specialist lawyers here at Freeman Jones Solicitors by giving our office a call on 01244 506 444 or arrange a free initial consultation.
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