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
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