Cohabitation Awareness Week - Understanding your rights as a cohabiting couple

Nov 27th, 2019

Natalie Wiles, Chartered Legal Executive – Associate

According to the Office for National Statistics, cohabiting couples are the fastest-growing family type as people increasingly choose to live together before or without getting married.

One in eight adults in England and Wales lives as half of an unmarried couple and this proportion has risen every year since 2004, to six million people now. Half of them co-own property and other financial assets, but the perception of their rights is often skewed, with the common misconception and myth surrounding common law marriage. 

Resolution, a national family law organisation, are working to raise awareness of cohabitation issues and this week is cohabitation awareness week. As a member of Resolution, my aim is to help dispel the myths and to help cohabiting couples better protect themselves when it comes to life events. You can understand more in my Q&A guide to understanding your rights …

My partner and I have been together for years, are we now treated as married under common law?

This is a very common misconception and is a complete myth. There is no legal concept of “common law” marriage. Even if you have lived with your partner for a significant time you will not acquire any legal rights available to married couples. Worryingly, many people rely on being married under “common law” and do not realise what the implications are. There is often only a realisation of the position after the relationship has ended and sadly this can leave people in a very vulnerable situation.

If you are unmarried you do not have the same rights as married couples in relation to financial support and inheritance and no amount of time cohabiting together changes that position. There is no on-going duty of financial support between unmarried partners upon separation. On the whole, a much more clinical approach is taken by the courts.  

My partner and I are buying a house together, is there anything that I should do?

Buying a house is one of the biggest financial commitments which you will make and it is so important not to rush into this. I strongly recommend that anyone who is purchasing a property with their new partner takes independent legal advice on their position before you go ahead. Buying a house together is a very exciting step but in my experience, many people do not think about what could go wrong if the relationship comes to an end. 

It is important to consider the following issues:

  1. How much are you both investing in the property?  Are you both going to have an equal share of the equity in light of those financial contributions?
  2. On what legal basis are you going to own the property? Are you going to be joint tenants or tenants in common?
  3. What will happen to the house if your relationship comes to an end?
  4. Who is going to be paying for the bills/mortgage and how are your finances going to be arranged during your relationship?

It is important to have an open and honest conversation with your partner about the above matters – do not be vague! I understand that this is very unromantic but it is so important. Once you have reached an agreement about the above issues you should consider how you would like the agreement to be recorded.

It is possible to enter into a Cohabitation Agreement. This is a document which is signed as a deed by each of you and records the terms agreed. The benefit of this is that the document provides a clear framework of the agreement and helps to minimise the prospect of any dispute at a later date.

What is the difference between “joint tenants” and “tenants in common” and why is this important?

Many people do not realise that there are different ways that a property can be owned or the legal implications of that ownership. 

Most commonly people choose to own a property as “joint tenants”. The effect of this is that each of you owns the legal and beneficial interest, which is essentially the financial interest,  in the property together. This means that if one partner sadly dies that their share in the property automatically transfers to the surviving owner.

If you own the property as “tenants in common” the legal ownership of the property remains in joint names but the beneficial interest is divided. The presumed division is an equal split but it is possible to stipulate other shares if your individual circumstances require. The effect of this is that should one partner sadly die, their share in the property will pass to their beneficiaries under a will. This means that for the surviving partner there is a risk that their former partner could leave their share in the property to a third party which would give that third party certain rights in relation to the property. It is absolutely vital that each partner makes a will where the property is owned as “tenants in common”. 

It is so important to consider this issue before you purchase your property. In the event that you purchase the property as joint tenants, the legal presumption will be that the interest in the property is equal. It is very difficult to get over this hurdle or “backtrack” on the position, particularly once the relationship has broken down.

I am putting more money into the property than my partner, how do I protect this investment?

It is very important if you wish to protect your investment in the property that this is properly recorded by way of a “deed”. The legal presumption is that joint owners have equal shares in the property and it is vital to have this properly recorded in writing. Deeds hold significant legal weight and it is very difficult to overturn agreements which are signed as a deed. There are different ways of doing this:

  1. You record your respective shares in the property on the TR1 (the conveyancing document which transfers ownership). The TR1 is executed as a deed.
  2. You can also have a “declaration of trust” which is a supplementary deed executed by both owners. 
  3. You can enter into a cohabitation agreement.

A Cohabitation Agreement is very comprehensive and can go into much more detail about the financial arrangements within your relationship. There has been a significant rise in the number of unmarried, cohabiting couples in the UK and Cohabitation Agreements are becoming increasingly popular. A Cohabitation Agreement can deal with a wide variety of issues such as setting out your shares in the property, what should happen if you separate, how the possessions will be divided, who will be responsible for maintenance or repairs to the property. 

Having a Cohabitation Agreement helps to avoid costly and stressful legal proceedings at a later date. 

What happens to the jointly owned house if we separate?

In the unfortunate event that you separate consideration will need to be given as to what should happen to the house and when. It may be that one partner wishes to stay in the property or it may be that you both wish to sell. In the event that one partner wishes to stay living at the property then it will be necessary for them to release the other partner from the mortgage (if there is a mortgage)  and pay a lump sum reflecting their interest in the property.  A sensible starting point is to have the property valued by a jointly agreed surveyor so that it is clear how much equity there is available in the property. This will really help with discussions about a settlement.

If you or your former partner moves out of the property prior to any sale or transfer then consideration also needs to be given as to who will continue to pay the mortgage and other bills pending completion of the transaction. 

Having a Cohabitation Agreement at the outset is helpful in this situation as you will have already agreed what should happen in the event of separation and the timescales for this.  This can help to remove some of the uncertainty and stresses that follow a separation. 

My partner’s income is much better than mine, what claims do I have if we separate?

As the law currently stands there is no ongoing duty of financial support for unmarried partners. This means that you would not be able to make any claim against your partner for financial support. If there are children then this may change the position and, of course, child maintenance is payable in all cases.

How can we help?

Do you wish to seek further advice? Please contact the team on 0330 0947777.

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Natalie Wiles

Chartered Legal Executive – Associate

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