Advice for separating cohabitees and experts in creating Cohabitation Agreements

Cohabitation - Understanding your rights

One of the biggest urban myths is that a ‘common law spouse’ has rights similar to those who are married or in civil partnerships. This simply isn’t the case. Instead, strict principles of property and trust law apply, as developed by the courts. These can be complex and detailed.

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Ross Phillips


What the law says on cohabitation

The law presumes that joint owners hold property in equal shares unless there is strong evidence, such as a formally signed declaration of trust, to the contrary. Otherwise, a joint owner claiming unequal shares needs to persuade the other owner, or ultimately a judge, that other evidence exists (written, verbal, electronic, or otherwise) from which an intention to share the property differently can be inferred. If that doesn’t work, a judge may impute such an intention to the joint owners based on his or her interpretation of the fairness in their case, with reference to the whole course of dealings between them regarding the property.

As all cases are unique and different, we recommend speaking with a specialist cohabitation solicitor to advise on your situation.

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Your cohabitation questions answered

The best solution is to ensure that, either at the time a property is purchased or a financial investment is made in a home, or at any time after its acquisition, a clear declaration of trust is created as a minimum.

It’s also a good idea to consider a Cohabitation Agreement, which clearly sets out your financial arrangements and what will happen if the relationship comes to an end. You should certainly never invest money or effort into someone else’s property without taking specialist legal advice.

At Goughs we have the necessary experience and expertise to give you clear and reliable advice to ensure you understand your legal position and that, if appropriate, steps are taken to protect it.

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If you are not going to be a named, legal owner on the Land Registry Title to the property, nor a beneficiary under trust in accordance with an express, written Declaration of Trust or Cohabitation Agreement, then you cannot expect, after any length of relationship producing any number of children, to gain a financial interest in the property. Your position is not protected unless you have purchased your property jointly with your partner or if you have executed a Declaration of Trust or Cohabitation Agreement stipulating how the property is to be owned.

When you are not a named co-owner or the beneficiary of a Declaration of Trust or Cohabitation Agreement your property claim against your ex-partner is likely to be fraught with difficulty, but not impossible. Expert legal advice is required at the very outset when considering purchasing a property and / or moving in with your new partner. It is certainly needed upon the breakdown of the relationship but the advice might not always be what you want to hear.

Do not be fooled by your partner saying “we don’t need one of those [Declaration of Trust or Cohabitation Agreement], you should trust me” or “don’t worry about your name not being on the title deeds to the house, I’ll always look after you”. These assurances may mean little in the breakdown of a relationship.

Even when you may have loaned your partner money to pay debts, paid for cars, holidays and luxuries in life, you are still unlikely to be successful in a claim for a share of a property. If you were married, the court recognises all financial and non-financial contributions over the course of the relationship, including raising children, as broadly equal contributions. The court has broad powers to order property to be sold, transferred, and cash payments to be made between spouses. The court has no similar discretion when dealing with disputes between unmarried couples nor any similar range of orders to make.

Because you are unmarried, strict trust and property laws apply. Your claim for an interest in a property simply because you enabled the other person to pay the mortgage, is fraught with difficulty and most likely to fail. You would need to prove that the other person made a promise to you that you would gain a financial interest in that specific property if you were to pay for everything else, the cost of which you may well need to prove with documentation in support. It is best to have evidence in the form of a written agreement, but text messages, emails or some other documented record that there was a clear agreement and understanding between you that the property, whilst owned in the other’s sole name, was to be held beneficially by both of you.

Unmarried couples do not have the same rights as married couples to make claims for spousal maintenance, property adjustment orders, lump sum orders and pension sharing orders. Parents can only bring limited claims for financial support and provision for the children under Schedule 1 of The Children Act. Such claims are under-used and rarely entitle the financially weaker party to an outright transfer of property or money. The most common outcome is a temporary loan to the main carer of the children to provide housing for them until the children finish education, leave home, or reach a certain age.

In certain circumstances, claims for additional financial provision can prove difficult unless the financial gulf between the parties is vast, such that the financially stronger party can afford to give up the property temporarily or loan a large sum of money for the benefit of the children without themselves falling into real financial hardship or difficulty.

In most cases, the financially weaker party can only expect to claim child maintenance in accordance with the Child Maintenance Service guidelines which apply a strict formula. Approximate child support payments can be calculated on the government website.

Do not leave anything to chance. We specialise in disputes between unmarried couples on separation, and also advise many from an early stage so that they better understand their rights and entitlements when purchasing a property with their partner, or if they are planning on starting a family when not married.

It might seem unromantic, money grabbing or pessimistic to obtain such advice. However, you may not feel the same further down the line after years of financial contribution, or sacrifices made to raise children, when it comes to separating, had you taken steps to protect yourself from the very beginning.

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