It’s a myth that cohabiting gives you any legal protection after a break-up. Rachel Fisher from the Stowe Family Law Bristol office joins us to look at the issues around cohabitation and what you can do to reduce the risk if the relationship ends.
The biggest myth about the common law marriage is that it exists. Yes, as a social term it is used, but legally, the position of someone who cohabits is very different from that of someone who is married.
But society has and will continue to change; recent statistics show that cohabitants are the fastest growing family type in the UK. Growing from 1.5 million families in 1996 to 3.3 million in the UK by 2017 (ONS), cohabitants have grown by over 50%.
Millions of unmarried couples who live together are unaware of their rights if the relationship breaks down. So, what are the legal rights, if any, and what can you do to protect yourself?
Cohabitation v Marriage
1. Cohabitants have little or no legal protection at the end of a relationship.
2. The significance of who legally owns the house (whose name is on the title deeds) is far more important and your prospects of seeking a share of assets which are not owned in your name is significantly reduced if you are not married.
3. Many cohabitants do not understand that if the relationship was to break down then they would not have any entitlement to maintenance if they were the weaker party financially. The only statutory obligation is for the payment of child maintenance.
4. Many cohabitants do not understand the legal implications of moving in with their partner or purchasing a property with their partner.
5. If a marriage breaks down we refer to the Matrimonial Causes Act 1973 to determine what sort of financial settlement needs to be provided upon divorce. If a cohabiting relationship breaks down, and there is property involved, this is governed by the law of property and the law of trusts.
How can you protect yourself?
I would recommend taking advice from a family lawyer before moving in together to help avoid further problems down the line. There are many accounts of people who have moved in with their partner, who was maybe the financially stronger party, and lived together for many years only to find that when the relationship ended they had no entitlement to any share of the house or any financial support.
However, there are three key things you can do to protect yourself.
Declaration of Trust
Anyone who is cohabiting should complete a declaration of trust (a document that confirms the proportions in which two or more individuals own a property) regardless of how the property is owned at the beginning. It may be that this declaration of trust records the financial contributions both parties have made towards its purchase or reflect another agreement between the parties regardless of financial contributions. The proportions could be 50:50 or 100% to one party or anything in between however the advantage of a declaration of trust is that it creates certainty and will avoid a costly dispute if the relationship ends.
I would strongly recommend a cohabitation agreement which can deal with many other matters including payment of the mortgage, payment of other bills, home improvements and what will happen should the relationship breakdown.
Make a will
It is also important to make a valid will. If you were to die without leaving a will, under the rules of intestacy, unmarried cohabitees do not inherit.
What if the relationship has already broken down?
If you are already cohabiting and the relationship breaks down then please do seek legal advice as early as possible. There are a couple of options available to you if there are any disputes over property or children. However, it is better if you can try and resolve matters by agreement outside of the court process.
Trust of Land and Appointment of Trustees Act 1996 (ToLATA)
If there is a dispute about a property that is jointly owned or is in one of the parties’ name and the other thinks they are entitled to a share, you can make a claim under ToLATA to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share.
This route does have cost implications so it is important to take advice from a lawyer before commencing any claim. This is a civil claim rather than a family case so you should seek advice from a solicitor who specialises in these sorts of claims.
Schedule 1 Applications
If you have children you may be able to make a claim under Schedule 1 for financial provision for the children from the other parent.
The court can deal with maintenance for children in limited circumstances and can make capital orders such as payment of a lump sum for the benefit of the children or the transfer of a property for the benefit of the children, normally until the youngest child reaches 18.
The court will consider all the circumstances before deciding what order to make but the priority is to meet the needs of the children.
The future of cohabitation law
Resolution, a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems, campaigns the government about the lack of rights of cohabiting couples and for the need for reform to extend rights.
With only 1 in 3 couples knowing that there are no such things as common law marriage (Resolution survey), it is time for the law to catch up with modern society so that cohabiting couples are not at risk if the relationship ended.
Get in touch
You can get in contact with Rachel here