It’s not al­ways happy ever af­ter

Co­hab­it­ing leaves cou­ples with no le­gal rights if their re­la­tion­ship fails. Fam­ily lawyer Graeme Fraser sug­gests a so­lu­tion

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COHABITATION is the fastest­grow­ing “fam­ily type” in the UK — more than dou­bling from 1.5 mil­lion in the midNineties to 3.3 mil­lion last year. How­ever, cou­ples think­ing about mov­ing in to­gether should also con­sider what are likely to be the harsh re­al­i­ties of split­ting up.

Many peo­ple en­joy­ing a new re­la­tion­ship don’t want to think about the pos­si­bil­ity that it could all go wrong. You might be thrilled that your new part­ner is mov­ing into the home you own to share your life and many cou­ples do in­deed live to­gether hap­pily ev­ery af­ter, never both­er­ing to go to the ex­pense and ef­fort of get­ting mar­ried.

But while mar­ried cou­ples and civil part­ners en­joy con­sid­er­able pro­tec­tion if the re­la­tion­ship ends, none of th­ese rights ap­ply to cou­ples co­hab­it­ing. There have been no rights at­tached to “com­mon law” mar­riages since 1753.

The own­er­ship of the home they shared and the value in­vested in it is likely to be the big­gest souce of con­tention when a co­hab­it­ing cou­ple splits. Th­ese dis­putes are likely to be­come more fre­quent as the num­ber of co­hab­it­ing house­holds in­creases.

A typical liv­ing ar­range­ment is where a per­son al­ready owns a prop­erty and al­lows a new part­ner to move in with them. In th­ese cir­cum­stances, per­haps sur­pris­ingly, there are still a num­ber of ways in which the non-own­ing part­ner could make a claim to a share in the prop­erty if the re­la­tion­ship ends. The most com­mon is by demon­strat­ing a “ben­e­fi­cial in­ter­est” in the home.

This could be best demon­strated by a signed and wit­nessed doc­u­ment stat­ing that the non-own­ing part­ner is en­ti­tled to a par­tic­u­lar share in the prop­erty. A very well-or­gan­ised cou­ple might pre­pare such a doc­u­ment in the early days of liv­ing to­gether. Most don’t bother.

Even if there is no doc­u­ment, a claim can still be made. If the non-own­ing part­ner has sig­nif­i­cantly contributed fi­nan­cially to­wards the home — by mak­ing the mort­gage re­pay­ments, for ex­am­ple — and it can be shown that there was a “joint in­ten­tion” that this would re­sult in them hav­ing an in­ter­est in the prop­erty, then this might con­sti­tute the re­quired ben­e­fi­cial in­ter­est.

The ex­tent of that in­ter­est could be in pro­por­tion to the money in­vested, or it might be some­thing else en­tirely. It will be a court that will de­cide what the joint in­ten­tion was. Demon­strat­ing a joint in­ten­tion with­out a for­mal doc­u­ment is not easy but it can be done if the cou­ple clearly dis­cussed the mat­ter and it can be shown that the non-own­ing part­ner thought they were be­ing promised a ben­e­fi­cial in­ter­est and had made a fi­nan­cial or other con­tri­bu­tion to the home on that ba­sis.

GET IT DOWN IN WRITING

The more ef­fec­tive pro­tec­tion against costly and bit­ter dis­putes fol­low­ing the break-up of a re­la­tion­ship is for a cou­ple to have a Cohabitation Agree­ment. This can be of ben­e­fit to both sides as it sets out who is en­ti­tled to what at the end of a co­hab­it­ing re­la­tion­ship, re­mov­ing much of the bick­er­ing and un­cer­tainty that of­ten fol­lows a split.

More than that, it can es­tab­lish what each will con­trib­ute dur­ing cohabitation. It can set out who pays what to­wards house­hold ex­pen­di­ture and even the spe­cific ac­tions that would bring about an end to the re­la­tion­ship.

Draw­ing up such an agree­ment may seem un­ro­man­tic but a Cohabitation Agree­ment can of­fer vi­tal pro­tec­tion to co­hab­it­ing cou­ples.

Al­most ev­ery cou­ple will sit down be­fore mov­ing in to­gether to dis­cuss how they will di­vide up house­hold bills and this is the ideal op­por­tu­nity to dis­cuss draw­ing up a Cohabitation Agree­ment. Think of it as be­ing like life in­sur­ance or a Will: it is not some­thing that you would want to use but it of­fers both par­ties im­por­tant pro­tec­tion if the worst should hap­pen.

How­ever, do not be tempted to draw up a Co­ha­b­i­tion Agree­ment your­selves. It needs to be en­force­able in a court and so needs to be drafted by a le­gal professional with both par­ties tak­ing sep­a­rate in­de­pen­dent le­gal ad­vice if pos­si­ble.

A straight­for­ward Cohabitation Agree­ment will cost about £1,000, in­clud­ing VAT, though it could be more ex­pen­sive for cou­ples with par­tic­u­larly com­plex fi­nan­cial ar­range­ments.

With­out a Cohabitation Agree­ment, a break-up can pro­duce a shock. One mother of two chil­dren who had lived with her part­ner for more than a decade was hor­ri­fied to dis­cov­ered on tak­ing le­gal ad­vice fol­low­ing the break­down of the re­la­tion­ship, that she was not legally en­ti­tled to any share in the fam­ily home. Be­cause the prop­erty had been pur­chased in her part­ner’s name and she had not made con­tri­bu­tions to the mort­gage, she was com­pletely un­pro­tected.

Even if she took her case to the Fam­ily Court, seek­ing to stay in the fam­ily home for the sake of their chil­dren, she would have to leave the prop­erty once the chil­dren reached adult­hood.

Res­o­lu­tion, a na­tional or­gan­i­sa­tion which rep­re­sents lawyers who want to see less con­fronta­tion in fam­ily law, holds de­tails of fam­ily lawyers in your area. Visit res­o­lu­tion.org.uk/find­amem­ber for more in­for­ma­tion.

Un­wed­ded bliss: cohabitation is the UK’s fastest grow­ing “fam­ily type”. But when it all goes wrong, there’s many a bit­ter row over who owns what

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