You may have heard people talk about ‘common law spouses’ and that the assumption is that unmarried couples have the same property rights as a married couple. This is a common misconception and is actually incorrect!
This may come as a surprise, especially in cases where a couple have been in a long-term relationship and have lived in the same property for several years. But ultimately, even if you have been living together for several years up until the point of separation, legally there is no obligation on a cohabiting couple to meet the financial needs of the other.
However, there is a plan for a reform of the law on cohabitation. The Government have confirmed it will consult on this specific issue at some point this year. Whilst we are unsure what this will mean moving forward, the hope is that this will provide better protection for unmarried couples.
What Is Possible?
In some limited circumstances, there may be the potential for a claim to be brought by a partner against another. In particular it may be possible to make a claim against a property where there is a child involved under Schedule 1 to the Children Act 1989. An application can be made under this Act to consider financial provision for children.
There may also be a claim that can be brought if there is an interest in any property arising from ownership or a trust. For instance, an express written declaration in relation to their shares in the property, such as a written deed or a declaration of trust.
If there is no express trust but you still wish to argue you have a beneficial interest in the property you may be able to establish this interest in other ways. This could include things such as financial contributions to the property, how the couple have conducted themselves during the relationship, or an assurance being given by the owner of the property that the partner will have some kind of right or benefit over the property. Discussing this further with your family lawyer is essential as, as much detail as possible will be needed in trying to claim a beneficial interest in the property.
Joint Ownership of a Property
If you and a partner decide to purchase a property together, you can own the property in one of two ways:
Tenants in Common
This is where each owner owns a distinct share. This share does not automatically pass to the other co-owner on death and either passes in accordance with a Will or, in the absence of a valid Will, under the intestacy provisions.
Joint Tenants
If a couple hold a property as joint tenants, each owner usually has a share of the property that automatically passes to the surviving co-owner on the death of the other.
At the point of purchasing a property with your partner, it is important that the different types of ownership are considered and that you fully understand how you will own the property together and what this means for you.
How Can We Protect Ourselves?
Declaration of Trust
If you and a partner decide to purchase a property together, you will own the property as Joint Tenants or Tenants in Common. In the event that you and your partner decide that you wish to hold the property unequally, for instance, with one person having a 70% share and the other having 30%, then this must be made clear when purchasing the property.
To do this, you may decide to create a declaration of trust. This document can be drawn up when purchasing a property to set out details of the shares of each owner.
Cohabitation Agreement
Another way you could try and protect yourself is by way of a cohabitation agreement, which would assist in setting out what would happen with the assets on separation. A cohabitation agreement could also set out an agreement in respect of financial contributions, for instance, to the mortgage and utility bills during the relationship.
Making a Will
It is always important to ensure that not only you have a valid Will but keep it updated and reflective of your wishes in the event you pass away. If you pass away without a valid Will, then you would die what is known as “intestate” and your assets would pass in line with the intestacy provisions. The intestacy provisions do not make provision for unmarried couples nor stepchildren, so it is really important that, especially if you own a property in your sole name, you make a Will to express your wishes as to what happens with that property.
Next Steps…
If you have any questions on the above, or any Family Law matter, please feel free to call me on 01332 364436 or email e.facer@timms-law.com
For further information, visit our Family Law webpage here.
