The law is very different for cohabitees or those who cohabit and live together without getting married from those who have got married.There is no such thing in English Law as a ‘Common Law’ wife (or husband). The law treats cohabitees and those that live together as separate people, with no automatic rights against each other if the relationship breaks down. Property belonging to one party will remain owned by that party, unless very special circumstances exist. Rights with regard to children could be restricted as there is no automatic parental responsibility for a father who is not married to his child’s mother unless he is recorded on the birth certificate.
Couples who have not married will not be able to claim a share of property belonging to a former partner on the breakup of cohabitation, no matter how long the relationship has lasted. If property is in his name, it belongs to him, and if it is in her name it belongs to her. In divorce, the courts have an unlimited right to vary property ownership between married couples on divorce but not so with cohabitees.
There are, however, exceptions where for the sake of fairness the court can vary the ownership rights. These are very fact specific and on which individual legal advice will always be necessary:
- where the property was jointly acquired, and there is evidence to show an intention that it be jointly owned;
- where a party directly contributed to the acquisition of the property so as to show an implied intention that it was joint property;
- if there was an understanding between the parties, and the non-owning partner has acted to his or her detriment in reliance on this understanding. A usual example is payment of the mortgage by one party on a property in the other partner’s name.
Unmarried couples, when buying a home together, should always before completing their purchase give careful consideration as to how the property is to be held. How are the sale proceeds to be divided if the relationship breaks down and the house is sold? The options are to hold the property as beneficial joint tenants or as tenants in common. The decision may be based upon intended contributions to the purchase of the house. The intention should be recorded in a cohabitation agreement or in a trust deed.
There is no right of maintenance between cohabitees to maintain each other, either during or on the breakup of a relationship. The position, however, is different with children, where a duty is imposed by law to maintain all biological children whether or not the parents are married.
If one partner dies without making a will, his or her property will pass to their relatives, and not automatically to their former partner. An exception would be property held as beneficial joint tenants, which will pass automatically and outside of a will.
claims to property owned by a deceased partner can be established under the Inheritance (Provision for Family and Dependents Act) 1979. However, disputes over property between unmarried couples are messy, can be most acrimonious, and have every potential to be expensive.
There are a number of things which can be done if you are intending to move in with a partner. Whilst not being particularly romantic, they are most sensible, and can lead not only to the avoidance of problems if the relationship ends, but an understanding during the relationship.
- Make a will.
Each partner should make a will. If a partner should die without making a will, his or her property will pass under the intestacy rules, often to a relative, or even a former spouse. A will can always be amended or revoked if circumstances change, and would become invalid should you marry.
- Make a cohabitation agreement
A cohabitation agreement is a simple record of what was agreed in respect of property, money, and claims against each other when it was decided to set up home together. They set out the practical arrangements which have been agreed when two persons decide to live together. By setting those out in writing it is shown that both intend to be bound in the future by what has been agreed now.
Although the law provides little protection for the rights of couples who live together outside of marriage, it will enforce what has been agreed between them. It is therefore sensible, if future arguments are to be avoided, to decide the ‘terms’ of a cohabitation and write them down in a cohabitation agreement. This need not be difficult or expensive.
Making a cohabitation agreement will also make you think about the financial implications of living together and concentrate your mind on what should happen if things do not work out. It will also help avoid arguments and settle any dispute which arises whilst you are together.
Will a cohabitation agreement give me complete protection if we split up?
Not necessarily, but it will help. It will be a clear record of what was agreed between you, with the purpose of being legally bound and likely to be enforced by a court.
I am going to be borrowing some money from my father to buy the house we are purchasing together. How can this be confirmed?
A properly-drawn up cohabitation agreement will record who contributed towards the purchase of the house and how the sale proceeds are to be divided when you sell.
What do I do if my partner won’t leave our jointly owned home?
When a house is jointly owned there is an implied entitlement for each owner to live there. This is a right which a court will not interfere with without good cause. In the case of domestic violence an occupation order may be available, and even where there is not been violence, the court might exceptionally order your partner to leave until matters can be sorted out. If you and your partner are no longer to live together, you will need to consider whether the house is to be sold or whether you are able to acquire his share.
I am thinking of asking my girlfriend to move in with me. If she does, will she then have a claim on my house?
Your girlfriend moving into your house does not in itself give her any rights over it. If she is to have any claim to rights over your property, these would have to be either expressly or impliedly given. The danger could be if she contributes to the property, such as by paying for improvements. Contributions to living expenses are irrelevant. To avoid any possible future problems you should enter into a cohabitation agreement with her, which can expressly state that she has no interest in your house, and deal with the position and any rights should your relationship come to an end.
What do I need to think about if our relationship is over and it looks like we are going to split up?
Before deciding finally that your relationship is over you should discuss this with family and friends and consider very carefully what life will be like as a single person. It may not be as rosy as you’d think, especially as a single parent. If having taken your time and thought things through carefully your decision is final, it will be time to tell your partner and children. How you tell particularly the children is most important. You will need to explain the practical arrangements to the children and whenever possible this should be done together by both parents.
I paid over £5,000 for a new kitchen when we moved into our home. Can I get this back when we sell?
All will depend upon your intentions when you purchased the kitchen. Was your intention that it would be for the home and joint benefit of you and your partner or was it to be yours alone? If the latter, was this communicated to your partner and did he agree? These are always difficult questions for a court, as what was agreed and intended is often not apparent, accept where there is a cohabitation agreement. You must try to reach an agreement with your partner.
What is the difference between a cohabitation agreement and a deed of trust?
What is the difference between a cohabitation agreement and a deed of trust?
Do I need a cohabitation agreement, as the house is just in my name?
You certainly do. This will establish that your partner has no interest in the property unless you decide to give them an interest for a financial contribution to the house or work carried out by them. These are always difficult questions for a court, as what was agreed and intended is often not apparent, except where there is a cohabitation agreement. You must try to reach an agreement with your partner.
What are my rights if me and my partner split up?
Unless rights and entitlements towards each other were agreed and promises made with the intention that they would be legally binding, an unmarried couple have no rights and claims against each other if their relationship fails.