Cohabitation - It's all quite simple, isn't it?

So, you’ve met someone you want to share your life with and want to make a home together.  Neither of you are in a rush to marry, maybe one or both of you have been through a marriage that went wrong and don’t want to go through it again. Maybe it just isn’t on your agenda.  You decide that it’s much simpler to just live together. All well and good….until it isn’t.  Sam Miles, Family Partner, here explains how a cohabiting couple’s relationship ending differs from a marriage ending and what couples can do to protect their assets in the future.

What happens when a cohabiting couple separates?

Unfortunately, when a couple are not married, matters can end up far more complicated to unravel than if they were married. The law for sorting out the question of who gets what when a marriage breaks down is generally all found in one place – the Matrimonial Causes Act 1973. For unmarried couples however, there are the more ancient laws of property and trusts to consider.

The Court is often asked to determine the shares in the property that each party owns. The Judge first looks at the documents relating to the original purchase and will consider the following questions:

• Did they buy it as Joint Tenants or as Tenants in common?
• Did the deposit and fees get paid from joint money or just by one party?
• Was there a declaration made at any time defining the shares of ownership?
• What was to happen to the deposit money if the property was sold again?

These matters are mainly dealt with by checking the documents from that time.

What happens without a Cohabitee Agreement?

However, it could be that there were promises or inducements made by one party to the other; such as a promise that even though it is owned in only one person’s name, it is really ‘our’ property. Another scenario that will complicate matters is if one person has received a windfall and paid for an extension or cleared the mortgage.

In deciding those issues the Court has to investigate the “common intention” of the parties. Is it an express one; where there has been actual discussion between the parties, or if it can be inferred from the whole course of dealings between the parties in relation to the property.

Verbal Cohabitee Arrangements

Such promises might never have been written down and only agreed verbally, so the Judge would have to hear evidence of what both people can recall of the circumstances at the time - possibly years after the event - and it’s unlikely to be something both people agree about.  If the promises were not explicit, written down, or obvious, the Judge will have to try to infer an agreement and ascertain how the parties arranged their lives as a consequence based purely on their verbal evidence and recollections.

If the relationship then also involves children, claims can be made to provide the children with a home which can override the legal ownership arguments.

How a Cohabitee Agreement can help

“The answer is to enter into the arrangement properly and take it very seriously,” explains Sam. “Take legal advice about what you are trying to achieve, decide on the best way the property should be owned and the consequences. Make sure that both people fully understand what they are agreeing to and what they can expect should, heaven forbid, the relationship breakdown at some point.  Get an agreement drawn up properly and arrange to review it, say every 5 years, just to keep it relevant.  Owning property together is a serious business, so it’s important that people take it seriously.”

If you are cohabiting with your partner and would like to discuss setting up a Cohabitee agreement, you can contact Sam or the Family Law team on 02380 717431 or email familyenquiries@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.