Cohabitation and the law
Aug 2022
Divorce & Family

Cohabitation and the law

Christian Butler
Partner, Head of Divorce & Family

What should I consider before buying a property jointly with my partner
The law largely treats people who live together, without being married or in a registered Civil Partnership, as separate individuals with very limited legal rights. If it is intended that both parties are to own a property together, but for some reason the legal title and/or mortgage is only going to be in one party’s name, you should have a “Declaration of Trust” prepared to state whether you intend to own the property in equal shares, or otherwise. Also, if you purchase a property with your partner in joint names but you do not intend to own it equally, you should also have a “Declaration of Trust” prepared. This is a short document that can easily be prepared at the same time as your property purchase, which defines each parties share of the property, and should avoid arguments or potentially expensive legal proceedings if you separate and disagree about how much of the sale proceeds each is entitled to from the property.

So, if I separate from my partner, I don't automatically receive half of the property?
No. You do not obtain automatic rights to property or assets if you live with someone in the same way as you would if you were married or in a registered Civil Partnership. The law focuses on what the parties intended when they bought the property or began living together. The best way of being able to prove what was intended is if there is an agreement in writing in the form of a “Declaration of Trust”, rather than at the end of the relationship the parties disagreeing about what was said, and intended, at the time of purchase. If you do find yourself in this position, it is best to consult a specialist lawyer who can advise you about your particular case.

What is a cohabitation agreement?
A cohabitation agreement states who pays the living expenses during cohabitation, and if jointly in what proportions. It can also specify what is to happen in the event of your relationship ending. For example, who needs to leave the property by when and who should keep items, which are acquired during the co-habitation, such as furniture, motor vehicles and gifts.

Am I entitled to maintenance from my former partner?
There is no such thing as a ‘Common Law Spouse’. If your relationship breaks down, you cannot claim maintenance for yourself from your ex-partner although they will have financial responsibilities towards children of the relationship.

What is the position regarding our children?
The parent with whom the child lives after separation is entitled to claim child maintenance from the other parent. It is also possible to make a claim on behalf of the child for a capital payment such as a cash lump sum or property, if the other parent has spare resources, but any property obtained will pass back to the other parent when the child reaches adulthood.

What happens if my partner dies?
The law of intestacy does not make any provision for unmarried partners. If your partner dies without making provision for you in a Will you are unlikely to receive any benefit unless are entitled to make a claim against the estate under the Inheritance Act 1973. Unmarried couples should seriously consider making Wills.

For further information contact Christian or call 0191 232 8345.

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