Cohabitation and Living Together
More and more of us are choosing to buy a home and move in with our partner without getting married first, either because we don’t want to or because we’re going to do it later.
Although it may seem unfair, being married brings automatic legal rights which cohabiting couples currently don’t have – there really is no such thing as a common law marriage.
However there are sensible steps you can take to protect yourself legally and financially. It may not feel very romantic to look ahead to a ‘what if’ scenario when things might go wrong between the two of you – especially as it may never happen – but clarity about the future can bring security.
What is a Cohabitation Agreement?
So, if you are thinking about buying a home with your partner, or if you have already done so, taking out a Cohabitation Agreement is an uncomplicated way of making sure you both know where you stand – who owns and owes what and in what proportions, what financial arrangements you have decided to make while living together and how property assets and income should be divided if you split up.
It can be as detailed as you want, covering contents, personal belongings, savings, pets and how much each of you contributed to the mortgage deposit and subsequent payments.
Our Family team can help you to draw up a Cohabitation Agreement so that you know exactly where you stand.
Read our legal guide on cohabitation agreements or “no nups”.
What happens when you separate?
If you do not have a Cohabitation Agreement in place, you will need to reach an agreement with your ex-partner as to how to deal with financial matters.
In many separations, the main asset is the family home. The way in which this is owned will have been set out at the time the property was purchased. It will either have been registered in one party’s sole name, or in the parties’ joint names as “Joint Tenants” or “Tenants in Common”. Joint tenants are presumed to have an equal interest, whereas Tenants in Common can specify whether the property is owned equally or in unequal shares. Checking which type of ownership applies to your situation is the first step, and a crucial one.
There are some cases where the parties’ interests in the property are clear-cut but there are some circumstances in which parties can argue that they are entitled to a greater share. It is also possible in some circumstances for a person to have an interest in a property that is registered in the sole name of the other. This is a complex area of law and our specialist solicitors can advise you on your individual case.
Aside from addressing what each person’s share in any property should be, agreement will also need to be reached on whether the property should be sold or transferred to one party in exchange for a lump sum. There are also other important issues such as who should pay the mortgage, how any other assets should be divided, who is responsible for any debts etc.
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If you agree a settlement
We would recommend that if you are able to reach an agreement with your ex-partner, whether directly or with the help of solicitors, this is drawn up into a Separation Agreement. This can record the terms of any financial settlement and can include details relating to the arrangements for the care of any children also.
If you cannot agree
If it is not possible to reach an agreement voluntarily, disputes concerning property can be referred to the court to be dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).
Where the parties have children, it may also be possible for a claim to be made under Schedule 1 of the Children Act 1989.
We will always try to help you reach a resolution without the need to issue court proceedings but we recognise that this is not always possible and we can assist you through the court process.
Not just separated couples
There are many people who purchase property with others, including family members and friends, who may also find themselves in a difficult situation if one person wishes to sell the property or move out.
Our solicitors can help with disputes concerning property owned jointly, whatever the connection, or if someone believes they have an interest in property owned by another person.
Contact a member of our team to book a free 30-minute initial consultation with one of our solicitors.
Because your home is likely to be the biggest investment you will every make, you should consider entering into a Cohabitation Agreement or Declaration of Trust.
A Cohabitation Agreement is particularly important if you are contribution more to the purchase price than your partner in order to protect your investment and to make sure you don’t end up with less money than you put in if it is sold.
A Cohabitation Agreement will set things out clearly and avoid your partner acquiring an interest in your property – which could happen if they contribute towards the mortgage or pay for something like an extension.
You should discuss this issue with your conveyancer at the time of purchase and enter into a Declaration of Trust detailing the contributions and ownership of the property. This needs to be clear from the outset to avoid possibly having to give away 50 per cent of the property’s value at a later date.
Because you will not be named on the title as a legal owner, you should enter into a Cohabitation Agreement otherwise it will be difficult to prove that you are entitled to an interest in the property in the future. A stressful dispute could follow and in the worst case scenario you could lose the money you put into the property.
If you have a Cohabitation Agreement in place, the way forward should be clear. But if you don’t, and the two of you can’t agree, we can help. We will always start by trying to negotiate with your ex-partner and if an agreement can be reached, this can be recorded in a Separation Agreement by which you will both be bound.
If not, we will be able to help you with making a Court application for an Order of Sale which can force your former partner to agree to sell.
It depends on the circumstances and as the law is complicated in this area, it is usually best to talk to a solicitor. We can offer you a free, half hour appointment with a member of the Cohabitation team.
Potentially, yes. It’s always better to tackle these kind of issues as and when they arise and not years later. Disputes of this nature can quickly get complicated so it’s important to take legal advice. We can offer you a free, half hour appointment with a member of the Cohabitation team.
With any dispute, we always do everything we can to avoid Court proceedings and the vast majority of cases can be resolved through negotiation and mediation.
If they left a Will, their estate will be distributed in accordance with its terms. If they didn’t it will be distributed amongst their relatives in accordance with the intestacy rules which means that if they owned the home you share in their sole name, you won’t be entitled to stay.
If you find yourself in this situation, you can make a claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependents) Act 1975. For help and information about this, please contact our Probate disputes team.