Cohabiting & Your Rights

By Ross Phillips, 12th June 2020

Cohabitees are the fastest growing demographic of couples in the UK, increasing at a rate far greater than married couples and civil partnerships which are available for same sex couples and more recently opposite sex couples.

Unfortunately lockdown has created a strained situation for many couples and we have been asked what rights people really have who are co-habiting?

Cohabiting in a Jointly-Owned Property

A cohabiting couple that purchase a property together will almost always sign a legally binding declaration of trust within the conveyancing forms when buying the property which stipulates how the legal ownership of that property is held. This is almost always upheld unless the document was completed incorrectly, is incomplete, or was entered into under duress, fraud or mistake.

Cohabiting in a Property in a Sole Name

A cohabiting couple that purchase a property in just one of their sole names, without having a separate declaration of trust or cohabitation agreement in place, will not own the property together. The sole legal owner will be entitled to the whole of the financial interest and equity in that property. That is unless there is sufficient evidence to persuade the court that there was some other agreement or understanding in place which meets a high and complex legal threshold. Only then can the non-legal owner seek to gain an interest without having a legal document drawn up to protect their interest.

Cohabiting in a Jointly Owned Property but Unequal Contributions

Where a couple purchase a property together in joint names but contribute unequally toward the property and record their agreement regarding how they are to own the property other than in equal shares, then this document will be legally binding upon them.

It is essential for cohabitees to therefore discuss exactly how they are to hold the financial interest in a property during the course of their relationship and how it will be divided upon their separation. It is preferable to discuss how they will each contribute during the relationship towards all of the household outgoings, how they are going to leave their assets on their death in their Wills.

What Are The Benefits of a Cohabitation Agreement?

Cohabitation agreements can include provision for how household bills are to be met, how life insurance premiums are to be covered and how pension benefits on death are to pass from the deceased to the survivor. The official paperwork required by the pension provider and certain nomination forms should be completed to ensure pension trustees follow this request and examination of the particular terms of the pension will need to be inspected first of all. Unless the necessary paperwork is completed and pension schemes are investigated, there is no right as between cohabitees to inherit in the deceased’s pension benefits.

There is no right of cohabitees to receive maintenance from the other party after separation. If there are children, then one party, if they are the primary carer, may receive child support assessed in accordance with the child maintenance guidelines from the other, but they are not entitled to maintenance in addition. Sometimes the statutory level of child support can seem quite minimal when there are significant disparities in the parties’ earnings.

Cohabitation & Children

Cohabitees who have children with one another have additional rights in the event of separation. They can seek financial assistance from their ex-partner on behalf of their children in order to ensure that their children’s needs are met by way of provision of housing or payments towards the children’s education. In many modest asset cases it is not possible to obtain additional support where children are concerned. The broad range of powers Family Law Courts have when considering financial settlements on divorce are not available to cohabitees.

One of the key considerations that surprises many cohabitees after they have separated is that the court has quite limited powers to vary the terms of ownership of a property or to enable one party to buy out the other’s interest. There is no statutory power requiring a court to allow one person to buy out the other’s interest in the property but the case of Bagum -v- Hafiz [2016] has opened the door to enable the courts to consider such orders. Generally speaking it must be assumed that the court will order the property to be sold if the parties cannot reach an agreement.

Cohabitation – How to Protect Your Future

Every couple’s situation is unique. Whilst it is a very good idea to consider a cohabitation agreement to plan effectively for your future together, which can be entered into before you cohabit or sometimes several years after you have started living with one another, expert advice from our team of experienced Family Lawyers is essential at an early stage if you have separated or are planning on separating and wish to know more about what your legal rights are.

For further information or to arrange your free half hour initial consultation, please contact Ross Phillips on 01249 812086 or email rossphillips@goughs.co.uk.

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