Cohabiting - The unfair option?


Although the number of unmarried couples has doubled since the 1990s, very little has changed in how the law treats cohabitees and their property if they separate.

Cohabitees with Property

And as more often than not the topic of ‘who gets what when we split’ will never come up until the unthinkable happens. If a cohabiting relationship breaks down you do not have the same legal protection as you would in a marriage.

An Uphill Struggle for Cohabitees with property

Recently, Lord Justice Toulson, a senior judge recently branded property laws for cohabiting couples "harsh" and "unfair".

When purchasing a home together there are two basic types of joint ownership:
  • Joint tenancy - where there is an equal interest in the property Tenancy in common - where the interest in the property is held in specific shares

If you both contributed an unequal amount to the purchase then this should be held as a tenancy in common with a Declaration of Trust recording your individual shares. If you do not do this and the property is purchased in joint names then the division is assumed to be 50:50, even if one partner paid more.

In some cases the house might be solely owned by one of you, and the other partner has moved in. These cases are more difficult because then the non-owning party must show that they have acquired an interest in the property and that there was an intention that the property was in shared ownership.

To many this sounds like a raw deal but an honest, open and frank talk about the issues at the beginning could avoid such harsh consequences, by drawing up a cohabitation agreement.

Make it Official - Put it in Writing

A cohabitation agreement can provide a good starting point for most cohabiting couples. Financial issues are often at the top of the agenda, so a good starting point would be to include:
  • the rights of each in relation to the property you live in
  • ownership of other assets
  • who is responsible for any debts
  • sharing expenses while you live together

A cohabitation agreement is not legally binding, but it is the best evidence of your ‘intention’ and would be proof of ‘intention’ in any future legal proceedings. To give your cohabitation agreement more weight, both you and your partner should take independent legal advice before entering into it.

Making a will

One crucial thing is that you and your partner make a will. Without one on your death they will have no right to the property or any other assets you own individually in your own name. This could leave them out on their own if the unfortunate happens.

If you own your property as a joint tenancy and one of you were to die, then your share automatically passes to the other joint owner.

If you own a property as a tenancy in common, on your death your share passes to whoever you have bequeathed it to under your will.

Law unlikely to Even up the Score

It is important that cohabiting couples take all the precautions they can to protect themselves in the event of a break up or if their loved one passes away. It’s never nice talking about finances when you’re in the throes of love but you’ll pat yourself on the back for it later if the worst happens.

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