Cohabitation

Living together is often viewed as a less formal arrangement than marriage, but it does have its pitfalls. Changes in the law have meant that cohabiting couples have far less protection than married couples if they decide to split up. If you’re thinking of moving in with your other half, you might want to know the following things first. And, if you want to know a bit more, call us to arrange an informal chat.

• Is there such a thing as common law marriage?

  No, there’s no such thing as a common law marriage. Unmarried couples don’t have the same protection as married couples. That said, it’s possible for former cohabitees to begin proceedings to establish a ‘trust’ in the other party’s property or assets, even if they’re not named on the property register. Be warned though, this can be a complex area of law and legal advice should be sought.

• How would financial matters be resolved if I separated from my partner?

  There’s been very little change in the law regarding cohabitating couples. Ideally, you’ll resolve things between the two of you, but if this isn’t possible you may have to go to court to sort out the situation.

• How can I protect myself financially if we buy a property together?

  Drawing up a Trust Deed and a cohabitation agreement is always the best policy. It’s not very romantic, and it may be the last thing on your mind in all the excitement of moving in together, but these are documents worth their weight in gold if the relationship breaks down. A cohabitation agreement and Trust Deed set out how the equity in the house is to be divided up should you separate. 

• My partner and I jointly own our property, but I put in more money when we bought it. Now we’ve separated, am I entitled to larger proportion of the equity?

  In a nutshell, no. If the property was bought jointly and there was no legal agreement (i.e. Trust Deed) drawn up which stipulated that the extra money you put in should be deducted from any equity in the property before the asset is split equally between you, you can’t claim your money back. The only exception is when it can be shown that the shares in the property are different, but this is very, very difficult to prove.

  When you bought your property the conveyancing solicitor should have advised you about this. If they haven’t there may be a potential claim for negligence but to substantiate it, the conveyancing solicitor’s file would need to be obtained and reviewed.

• My partner’s recently moved into my house which I’ve owned for some time. Will she/he be able to make a claim for some of my house if we separate?

  If you don’t want your partner to have any interest in your property, despite how awkward you might feel, it would be wise to have an open and frank discussion about it to avoid potential conflict further down the line. When you’ve reached a mutual understanding, it’s critical to record what you’ve decided in writing in a cohabitation agreement, which will outline how the arrangement will work. For example, this may involve keeping your finances separate so that you continue to pay the mortgage out of your own bank account. Alternatively, it might state what happens if your partner pays for any improvements to the property or contributes financially in some other way. 

• We jointly own a property, but she/he moved out sometime ago. I’ve continued to pay the mortgage and carry out improvements on it, so am I entitled to a greater share of the net equity when it’s sold?

  Although you may think so, it doesn’t automatically entitle you to a greater share of the property’s worth. That said, the court may rule on the basis of “equitable accounting” which means that you’re compensated for some of the financial outlay and this is usually taken out of your ex-partner’s half share. It’s not a straight forward process though - particularly if children are involved - and it can be quite convoluted so we’d advise that you seek legal advice. 

• My ex and I have separated, but we still jointly own the property. I’ve moved out and want to release my share of the equity, but my ex is refusing to sell. Is there any way I can force the sale?

  You can apply for an order and it’s at the court’s discretion whether to force the sale, but there are a number of considerations it takes into account. In general, these are yours and your ex’s intentions, if there are any children who live in the property and the interests of any creditors or beneficiaries of the property.

  Before you can do this, however, you’ll need to set out your case in sufficient detail to allow your ex to respond. This is called a letter of claim.  

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