Cohabitation Disputes

Cohabiting with a partner rather than getting married is becoming an increasingly popular lifestyle choice with each year that passes.

According to the Office for National Statistics, over the last decade, the number of cohabiting families in the UK has increased by 22.9%.

Whilst there are plenty of advantages to cohabiting, one area that could be a cause for concern is the legal rights of cohabiting couples.

In the eyes of the law, married couples currently have more legal rights than those cohabiting.

The rights that you have as a cohabiting couple depend on your circumstances.

Some of the factors that affect the rights that you have as a cohabiting couple include:

• Whose name property is registered in
• Whose name is on the birth certificate of any children involved?
• What financial contributions have been made by each party?
• If savings are in a joint bank account
• Whether they have made a Will
• Whether you have made either a Cohabitation Agreement or a Declaration of Trust

Whilst it may not seem very romantic to discuss what will happen to any assets if you split up or if one of you dies, if you choose to cohabit, having these discussions and ensuring that both of your rights are protected from the start is a practical approach to take and could save a lot of hassle and heartache later down the line.

Unmarried couples often believe that if they live together (cohabit) for long enough, they will acquire similar legal rights to those of married couples and that they will become what is colloquially referred to as a ‘common law wife or husband’.

However, in English law, there is no such thing as a ‘common law spouse’. When resolving disputes between cohabiting unmarried couples, the Courts do not consider the length of time that a couple has lived together, even when one of the parties has contributed to the joint household by raising children and running the family home.

In England and Wales, cohabiting couples do not gain any legal rights to each other’s assets simply by being in a relationship for a set length of time.

The property rights of cohabiting couples can be complex to navigate. Unlike married couples, cohabiting couples cannot automatically claim ownership over the property, no matter how many years they have been living together unless they have a joint tenancy agreement together. This can cause problems when cohabiting couples split up, or if one party dies.

The property rights of cohabiting couples depend on several factors including who owns the property and the financial contributions that each party has made.

Let’s take a look at what rights cohabiting couples have in different property ownership scenarios.

Joint tenancy

Cohabiting couples with a joint tenancy agreement jointly own the property and have equal rights and entitlement to the property and any proceeds from the sale of the property.

If one party dies, then a joint tenancy agreement means that the property is automatically inherited by the other owner.

Tenancy in common

If a property is owned by ‘tenants in common’, it means that each party owns shares in the property. The split of these shares may be equal or unequal, sometimes shares are split unequally if one person is going to be paying more of the mortgage or has put down a larger deposit than the other.

The shares in the property are owned separately and can be sold on or left to whomever the owner wishes in their will.

What happens when the property is owned solely by one person?

Sometimes, cohabiting couples live in a property that is legally owned by just one of them.

In these circumstances, if the cohabitee who is not the registered owner of the property has a right to live in the property or to a share in the property, then making a Declaration of Trust officially declares their beneficial interest in the property and can help to prevent disputes arising later down the line.

Implied or resulting trust

If there is no trust deed, the person who is not named as the registered owner of the property needs to prove their entitlement to an interest in the property.

Examples of how a resulting or implied interest in a property can be claimed might be:-

• If the owner of the property told you that you have an interest in the property when it was purchased.  Alternatively, they may have told you when you moved in with them. Demonstration of a financial contribution towards the household bills and/or the mortgage is also required.
• By establishing an implied intention for you to have a share in the property. If you have made contributions towards the purchase price of the property, the mortgage, or the initial deposit for the property, these can all be evidence of an implied intention. Pooling finances and paying all household bills and outgoings from that account can also be used as evidence of an implied intention.
• Proving that you have made a substantial contribution to the property, (ie. by paying for a home improvement) can also be a way of establishing an interest in the property.

Constructive trust

To gain Constructive Trust, the court must conclude that there is evidence that there was clear intention or agreement that the party who does not own the property would gain a beneficial interest in it.