If you’re living with your partner but aren’t married or in a civil partnership, you may not know that it’s a “common law” myth that simply living together gives you similar rights to married couples.
No matter how long you live together, if your relationship breaks down, you won’t have any of the legal protections that come with marriage, particularly relating to claims for income or maintenance, unless you have children together, or sharing your partner’s pension.
But don’t worry, you can get a Cohabitation Agreement, also called a Living Together Agreement. This means if your relationship ends, you can still protect your assets, manage your finances and make sure your children are provided for.
Our Family Law Solicitors can help you to draft a Cohabitation Agreement or advise you on how best to protect your position.
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According to the Office for National Statistics the fastest growing family type are unmarried couples, who are choosing to live together without the formalities of marriage or a Civil Partnership.
If you are one of these couples, putting a Cohabitation Agreement in place won’t be a perfect solution but it is better than not having one. It gives you both the least opportunity for uncertainty if your relationship breaks down in the future.
Although it’s not a Court Order that can be enforced, it can be important proof of decisions made at the outset, if the Court is asked to make a decision.
Any Court application comes with risks and additional costs, as well as uncertainty of outcome. Having a Cohabitation Agreement from the outset may help overcome some of these problems.
Living Together and Separation
Like most couples, when you move in with your partner you may give little, if any, thought to splitting up. But it’s a sad fact that a large proportion of couples, married or not, eventually part ways.
If you do separate, your rights to the property you both live in will depend on a number of things.
It is important to get advice before committing to ownership of a property with your partner. How you legally own the property together will have consequences and you should discuss this with your lawyer any property purchase.
Living Together - Property Shares and Disputes
- Jointly Owned Property
If you’re unmarried and jointly own a property with your partner, as a starting point any equity left after discharge of the mortgage and sale costs will usually be divided in accordance with the legal ownership of the property. This could be as Joint Tenants, in which case you would be entitled to an equal share of the sale proceeds, or as Tenants in Common, where your share would be determined in accordance with the percentage split you agreed at the outset. If you contributed a bigger sum when buying the property, or paid a greater share of the mortgage payments and hold the property as Joint Tenants, you probably won’t recover any extra contribution, but you could if you held the property as Tenants in Common.
With a Cohabitation Agreement – You can state exactly what share of the property you own, and confirm how your contributions are intended to be taken into account, so assets can be divided fairly if you separate in the future.
- Property Owned by Your Partner
If your partner already owns the home by themselves and you move in, you don’t have any legal claim to it simply by living there. It doesn’t matter how long you’ve lived there, it will still be their name on the Title Deeds, and in legal terms, it may be difficult to rebut the presumption that the property is solely theirs after you separate.
But it’s important to know that this is a complex area of law. If you split up, you might be able to claim in Court that you have a “beneficial interest” in the property if you have made a contribution in money or “monies worth” with the intention of gaining an interest in it. This could be a contribution to significant improvements to a property, or the mortgage, in the belief that you would have a share.
With a Cohabitation Agreement - You can possibly avoid legal action and the expense and possible conflict that comes with it, by outlining in an agreement your what your interests in the property might be in the event of any contribution by you, or how to protect against your partner unintentionally obtaining an interest should they simply contribute to other expenses not related to purchase of the property. An agreement can set out clearly what is intended and whether both parties will share in the property in the future.
- ToLATA Disputes
The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) gives the Court the power to make a decision about any land disputes between you and your former partner after separation.
This means if you really can’t agree on what happens to your property or land, the Court can make a decision as last resort.
You might have both sold separate properties to move into one home, or own a buy to let or holiday home together. Whatever your situation, ToLATA disputes are not uncommon and you can apply to Court to help you reach a resolution if negotiation or mediation does not provide a solution.
This is a complex area of law and is completely dependent on the facts of your situation, but with ToLATA legislation the Court can make an Order that:
- Declares what share of the property both you and your former partner own, whether that is one of you owning the entire property or not
- Forces you both to sell your land and property
- Can determine whether any third parties may also have a beneficial interest in the property, for example if your parents helped you pay for the deposit and it was agreed at the outset that they should be repaid at some point.
The Court is bound by previous decisions of the Courts above them, known as case law, and will not have the discretion they would have when dealing with a matrimonial dispute. But, the Court will be guided by what it believes was the agreement between the parties at the outset and any intentions to use the property as a family home.
With a Cohabitation Agreement – To avoid the Court having to make a decision based on limited available evidence of your circumstances some years before, an agreement can help the Court easily see what your agreement was in writing and what had been intended regarding the shares in the property when you were together and use this to help them come to a decision. It also means you might be able to avoid Court altogether, by knowing what each of you agreed that you would be entitled to from the beginning.
Our Family Law Solicitors have years of experience in property disputes and ToLATA, so we can give you expert legal advice tailored to you and your family.
When you come to us for help, we will try everything possible to resolve your issues outside of Court, so that lengthy legal processes will always be a last resort.
We offer a variety of options for your appointments, including telephone and video calls.
Children in Separation
Whether you’re married or not, you can apply for a Child Arrangement Order and ask the Court to make provision for where your child will live and how they will spend time with both parents, if you cannot agree to what the arrangements should be after discussions or mediation.
Regardless of what parents agree, a Court will always made an order which it believes to be in a child’s best interests.
With a Cohabitation Agreement – You can set down in writing what the arrangements for the children would be in the event that you separated, including where they would live and what would be expected from each of you when it comes to supporting them.
Having an agreement in advance may reduce the chances of a disagreement in the future and reduce the impact of any conflict between you and so that you can be reminded of what had been agreed at the outset.
Our Family Law Solicitors can help you draw up a Cohabitation Agreement, so you can be sure that if you’re unmarried and separate in the future, your interests will be protected.
With over 170 years of experience in Family Law, you can be certain that we’ll leave no stone unturned when it comes to reaching the best outcome we can for you and your family.
For initial legal advice call our Family Law and Divorce Solicitors
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