Cohabitation Awareness Week 2017

 

Statistics show that the number of couples who are choosing to live together without getting married or entering into a civil partnership is increasing. For the purpose of this blog, I will use the phrase cohabiting couple to mean a couple who live together but are not married or in a civil partnership.

What are the implications for those couples?

I have previously explored some of these issues in my blog, The Myth of Common Law Marriage, but as part of Cohabitation Awareness Week 2017, felt that now would be a good opportunity to look at how property is treated.

What is the legal starting point for cohabiting couples and property rights?

Cohabiting couples do not automatically have financial claims against each other. However, where a property is owned by one or both of the couple, they may have a potential claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

For the purposes of this blog, I am going to focus upon the cohabiting couple’s home.

The starting point is to look at how the property is owned

If the property is owned jointly:

If the property is owned jointly then the first thing to do is to establish if it is owned as Joint Tenants or as Tenants in Common. This can usually be established fairly easily and cheaply by obtaining documents from the Land Registry.

Joint Tenants – Where a couple own a property as Joint Tenants then they do not own shares in it but are considered to be joint and equal owners. Therefore, the presumption is that they each own the property equally.

Tenants in Common – Where a couple own a property as Tenants in Common then they each own shares in the property. These shares can be held equally e.g. 50/50 or not e.g. 70/30. Where a couple own a property in non-equal shares then this would normally be evidenced by a document called a Declaration of Trust. If there is no evidence regarding the shares that they each own in the property then there is a presumption that they will own the property in equal shares.

In some circumstances it is possible to show that a subsequent agreement between the couple needs to be taken into account e.g. that although on the face of it the property is owned equally there is a reason why this should be departed from.

These claims are fact specific and can be difficult to establish. The burden will be upon the person trying to show that a subsequent agreement should be taken into account.

If the property is owned in one person’s sole name:

If a property is owned in one person’s sole name there may still be a document confirming that their partner has an interest in it. This would normally be in the form of a Declaration of Trust.

Where there is no Declaration of Trust a cohabitee may still be able to show that they should have an interest in the property if they can demonstrate that:

a. There was a common intention between the couple that the cohabitant would have an interest in the property and they have acted to their detriment in reliance of this.

or

b. The non-legal owner cohabitant was led to believe by their partner that they had a beneficial interest and as a consequence of this they acted to their detriment.

Conclusion

In most, but not all, of these cases the applicant has injected capital into the property in question and claims that there was an agreement or understanding that this was in return for a beneficial interest in the property, so they expect to receive this capital back when the relationship breaks down.

If you are thinking of injecting capital into a property that you hold jointly with your partner, or that is held in your partner’s sole name, make sure that you have an open discussion about whether it is intended that you will acquire a beneficial interest, or an increased beneficial interest, as a result. If so, you should seek legal advice and consider entering into a Declaration of Trust to avoid confusion and possible litigation later down the line.

This is a complicated area of law and each case will depend upon its individual circumstances. If you find yourself in this situation it is really important to get advice from a family law specialist as early as possible.

10 responses to “Cohabiting couples and property rights

  1. My father is in his eighties and owns his own property. His new girlfriend, 83, has her property but my father wants her to live with him as his property is much larger. His girlfriend will still keep her property and maintain this, and occasionally will stay at her own property and keeps her car there. His girlfriend is not investing in my fathers property or is financially dependent upon him. How do cohabiting arrangements affect any claims to either property but in particular my fathers should his health deteriorate and he requires care in a care home as we would potentially need to sell his property to pay for care, or in the event of his death. What rights or claims could his girlfriend make?

    1. Your father should seek legal advice about the implications of his girlfriend moving in to live with him and consider getting a formal cohabitation agreement in place to govern the terms of the arrangements. A cohabitation agreement provides strong evidential weight, and therefore likely to be upheld by the court if a dispute later arose, if it is drafted in a certain way with certain conditions being met when entering into it to make it contractually valid. Your father can contact us and arrange an initial consultation or if we are not local to him and he wants a local lawyer you can find one online here.

  2. Having my partner move in without any contribution to my small mortgage I have a will leaving it all to my children but it something happens while she lives with me. Is there any type of document to stop her ..

    1. Thank you for your comment. Depending upon your specific circumstances, potentially your partner may have a claim against your estate if you were to predecease her or may be able to claim an interest in the property whilst you are still alive.

      In order to minimise the risk of your partner claiming an interest in the property whilst you were alive you can enter into a formal cohabitation agreement to make your intentions clear. I would suggest that you seek advice from a family solicitor who is a member of Resolution to assist you with this. If we can assist you further please do not hesitate to contact me.

      With regard to potential claims against your estate, I would suggest that you speak with a Private Client solicitor who will be able to advice you of potential ways of minimising the risk of this.

  3. My relationship has broken down and I had to leave the family home with my son for our own safety. We are currently living with my mother and I have applied for a council house. My ex partner is living in the family home but the mortgage and deeds are in my name. I want to sell the property to clear 2 unsecured home improvement loans which will leave no equity in the property and likely there will still be some debt left over. I need to do this to be able to afford living costs once I have secured a council property. Can my ex partner stop me from selling the property?

    1. Thank you for your comment. I am afraid that I am unable to provide specific advice in this forum as much more information would be needed to be able to properly advise. I would suggest that you seek advice from a family solicitor who is a member of Resolution.

  4. i have been cohabiting with my girlfriend for the last 12 years and 2014, l contributed to the loan for her to purchase a two bed house in her sole name. Since then, l have contributing 50% to the mortgage repayment and all the household bills. Until, 10th Jan 2019, after returning from christmas holiday in USA, l received a text to inform me that she wanted break up. On arrival on the house, l was refused entrance into house and my attempts Police were called so that l could not enter the house. Now what are my options of getting equity on the property ?

    1. Thank you for your comment. It may be that you are able to successfully claim that you have an interest in your ex-girlfriend’s property however, this will depend your specific circumstances and is not something that we would be able to advise upon based upon your blog comment. If we can assist on a formal basis, please do get in touch.

  5. Hi, I left a 14 year relationship to be with my current partner, i left with nothing as my child was only 6 at the time so stayed with her mother. I have been with my partner for 12 years, we remortgaged her property in joint names and are legally joint owners and have halved everything ever since. She has told me she wants to separate and our house is up for sale. There was no beneficial interest declared and the assumption was that we would see out the full mortgage term and sell the house to retire early and downsize. She is now trying to tale a larger share of the sale even though we both legally own the property. Am i entitled to half as i think i am. I offered a 60/40 split out of goodwill which she refused so i have removed that offer. Where do i stand legally ?

    1. Thank you for your comment, I am afraid that we are unable to provide case specific advice in this forum. However it does appear that there is an express trust but we would need to review the circumstances in more detail to be able to provide specific advice surrounding this complex area of law. I would strongly suggest that you obtain legal advice from a Resolution trained lawyer; if we can assist please do contact us and we would be happy to help you.

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