There are a growing number of couples choosing to live together in the UK without entering a marriage or civil partnership, A cohabitation agreement is one way of securing your future in the event of a relationship breakdown. Our expert cohabitation agreement solicitors offer practical legal advice to clients who wish to protect their wealth and future.
To book an initial consultation with our cohabitation agreement solicitors in London, simply call 020 3709 8975 or complete our online enquiry form.
On 8 November 2017, the Office of National Statistics released its Statistical Bulletin on Families and Households: 2017, in which it reported that in 2017 the second largest family type was the cohabiting couple with 3.3m of such families in existence (a huge increase on the 1.5m families recorded in 1996).
The word ‘cohabitation’ has come to denote the situation where two people live together as husband and wife or as civil partners in a family framework analogous to marriage or civil partnership without actually having gone through a ceremony of marriage or entering into a civil partnership. There is no one formal definition of ‘cohabitants’ but as offered by Section 62(1) of the Family Law Act 1996 cohabitants are ‘two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners’.
Further, the Adoption and Children Act 2002 definition of a couple includes ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’. A couple living together in this way are often described as ‘cohabitees’, although the terms common law husband/wife, defacto spouse and spouse equivalent are among a wealth of alternatives used, none of which is completely satisfactory or indeed legally correct.
When cohabiting couples break up/separate, the rights and remedies available to them can differ markedly from those available to spouses and civil partners. Certainly, where advice is sought on the breakdown of the relationship or on death, the emotional effects and social consequences, as well as the legal implications, may be far more complex where the relationship involved cohabitation than otherwise would be the case.
A cohabitant living in a property owned or rented in the sole name of his or her partner may be in a precarious position should the relationship breakdown unless provision has previously been agreed. Also, where a couple have either jointly purchased or rented a property, it would be sensible to enter into a cohabitation agreement, dealing with the financial consequences of a split.
Relevant matters to be considered for inclusion in a cohabitation contract are:
If there is a cohabitation contract in place in the form of a deed dealing with beneficial ownership of the home and division of property on relationship breakdown, in the event of a dispute over these issues, the courts will probably give effect to it.
Providing the contract meets the general criteria for an enforceable contract, contract terms which detail how a property which is brought into the relationship or subsequently purchased individually or jointly by the parties is to be treated on breakdown may well be enforceable. At the very least it will be strong evidence of the parties’ intentions at the time of the contract and will be valuable in case of dispute.
Similarly, if a property is bought for occupation by the couple as a family home a clause indicating that it is property which is to be beneficially jointly owned in stated/specified shares may negate any contrary indication on the title documents provided the cohabitation contract is executed as a deed. A clause to pay maintenance on a breakdown of the relationship to a partner who would otherwise have no right to maintenance will also prove enforceable if the contract is executed as a deed.
It is telling that, despite numerous attempts to curb this practice, in 2019 tabloids and many of their readers still continue to refer to unmarried cohabiting couples as ‘common-law spouses’ which phrase implies rights that do not exist in law. Indeed, a poll conducted by Resolution (the Association of Family Lawyers) during the Cohabitation Awareness Week in 2017 found that two-thirds of cohabitants were unaware that there is no such thing as ‘common law marriage’.
This state of affairs means that cohabiting couples are in much greater need than their married (or civil partner) counterparts of legal advice on the consequences of joint enterprises undertaken or proposed by them.
No, of course not. There is a common misconception amongst cohabiting couples that rights equivalent to marriage (or civil partnership) are acquired after a certain period of cohabitation, but that, to put it bluntly, is nonsense. You can only become married by entering into a formal legal ceremony of marriage and signing the marriage register and you can only become civil partners by formally registering as such.
It should always be the mutual choice of the couple whether or not to live together. Whether or not a couple decides to live together, no obligation can be imposed on one of them to financially support the other, save that if they have children together, but are living apart, there may be an obligation on the non-resident parent to provide financial support by way of maintenance payments for the children. Living together does not automatically confer legal rights on the couple as regards each other.
A party moving into the house owned by the other and who ends up lives there for 20 years may still acquire no interest in the property at all, even if they have raised a family there together unless s/he made some financial contribution to it in the expectation of gaining an interest or can establish that the parties otherwise agreed that s/he would acquire an interest.
A cohabitant living in a property owned or rented in the sole name of his or her partner may be in a precarious position should the relationship end either through breakdown of the relationship or death of the partner unless provision has previously been made. Cohabitants should therefore consider making Wills to ensure that their partner will be provided for in the event of their death.
The position of cohabitants on intestacy (when the deceased dies without leaving a valid Will) renders them particularly vulnerable on their partner’s death. As there is no blood or legal relationship between cohabitants, they do not come within any of the categories of person entitled to inherit on intestacy under Section 46 the Administration of Estates Act 1925. Thus, even where a cohabitant dies leaving no surviving relatives whatsoever his or her estate will pass to the Crown rather than to the surviving partner.
It is worthwhile noting however that the Crown may be prepared to make an ex gratia payment to a cohabitant in such circumstances. It is entirely discretionary but in fact may be the only way to provide for a cohabitant who cannot make any other type of claim as they had neither lived with their partner for two years prior to the death nor were dependent upon them.
If reasonable financial provision has not been made in a Will for a cohabitant of two years’standing, then a claim under the Inheritance (Provision for Family and Dependents) Act 1975 as amended by the Law Reform (Succession) Act 1995 for maintenance may be made. Such an application is not without difficulty. It is likely to be costly and may well be resisted by those who would otherwise inherit under the terms of a Will or on intestacy.
Proof of cohabitation throughout the two year period is required and this itself could in some cases create difficulties if for any part of the requisite two year period the couple were living apart. As the evidential burden is on the applicant this can pose difficulties and/or deter applicants from making applications for provision.
It should be noted though that, even if a cohabitant’s claim is successful, the provision available is limited to just maintenance and is therefore far less generous than the provision that can be made in favour of a spouse or civil partner where no such limitation on financial provision applies.
In the absence of a valid legal contract or a provable financial interest in the family home or other property, you may have little or no rights and no entitlement to make any claims of a financial nature against your partner. However, where the parties have lived in a property of which the legal and equitable estate is on the face of it in the sole name of only one of them, this is not necessarily conclusive.
The cohabitant will though have no claim against the home unless he or she can show some form of equitable interest under a resulting or constructive trust or due to the equitable doctrine of proprietary estoppel. For more information on these complicated legal terms and whether you would have a claim in these circumstances, you should make an appointment with one of our expert solicitors to discuss your particular circumstances.
If the family home is in joint names and there is in place a clear Declaration of Trust (either in the Transfer document/TR1 or in a separate document executed as a deed) setting out the parties’ respective beneficial interests, the courts will, in the absence of fraud or mistake, treat this as conclusive. As home ownership continues to be an attractive option, financial considerations may make it expedient for cohabiting couples to pool their resources and buy jointly.
Legal advisers have a crucial role to play in establishing at the outset the couple’s intentions at the time of the purchase of the property (particularly where they are to make unequal contributions towards the purchase price) and ensuring that the title deeds clearly reflect this. Not to do so is clearly negligent. Unequal contributions to a property vested in the joint names of the parties without further declaration as to their respective interests is likely to lead to a conclusive presumption that the property is beneficially owned in equal shares. Whilst it is difficult for couples and their legal advisers to foresee every eventuality, it is perfectly possible for Declarations of Trust to establish beneficial interests contingent upon the size of future contributions to a mortgage, as well as to reflect unequal contributions to the capital deposit, requiring only arithmetical calculations to be made on breakdown to realise each party’s share.
Even where there is a Declaration of Trust or binding agreement relating to the beneficial ownership of the home this does not prevent an application being made where there are children for a transfer of property order for the benefit of a child. Where there are minor children and you will be their primary carer, an application can be made under the Children Act 1989 for financial provision including for a housing fund (although the capital so provided will be held on trust by you for your partner and will be returned to your partner when the youngest child is 18 or completes full time tertiary education).
If the property is in your sole name and your partner had made no capital contribution towards the purchase of it, the costs of any major repairs or works of renovation or extension or in respect of the paying down of the mortgage debt, it is very unlikely that s/he could bring a claim in respect of the ownership of your house. If this is a concern for you, do contact one of our experienced solicitors for advice.
Yes. Where a property lends itself to physical partition it could be agreed or the court could restrict one party’s entitlement to occupy one part of the family home and to exclude or restrict the other’s entitlement to occupy the other part. This may be of benefit to cohabitants with children who remain on fairly good terms who could (with planning permission) convert a house into two self-contained flats as a cheaper/more cost-effective option than selling the property and purchasing two smaller properties with the resulting stamp duty and other associated costs of sale and purchase to take into account.
There is really no straightforward answer to this question, as a lot will depend on the issue for which you are seeking advice (whether sale of the family home, financial provision on separation for any children, the drafting of a cohabitation contract or to claim a share of a property in the name of your partner), the length of time it takes to conclude matters, whether an out of court agreement is possible, the stance taken by your partner and what you ultimately want to achieve.
Broadly, an out of court settlement could cost between £2,000 and £5,000 plus vat. A more complex matter could cost up to and sometimes more than £15,000 plus vat. At an initial meeting, we would be able to give a more definitive idea of likely costs and to carry out a cost/benefit analysis so that if court action is required the potential benefits of having representation will likely outweigh the risks of not engaging a solicitor.
We, at Josiah-Lake Gardiner, will guide you through the process required to enable you to secure a good outcome. Our expert team of solicitors, with a wealth of experience in dealing with cohabitation cases, will guide, advise and assist you at every stage of the process, ensuring that your interests are safeguarded. It is not for nothing that Josiah-Lake Gardiner has for a number of years been named one of the UK’s leading Family Law firms by the independent legal guide The Legal 500.