Cohabitation

There are many different types of families in today’s modern world. Nowadays, more and more people are purchasing homes with their partners as cohabitees without getting married. It is important to note that cohabiting couples do not have the same rights as married couples or those in a civil partnership. The concept that living together as cohabitees for periods would mean you are married through ‘common law’ is a myth. In the UK the concept of a ‘common law marriage’ does not exist.

If you are cohabiting with a partner, it is important to take steps to secure your financial position at an early stage, as living together does not necessarily give you any legal protection.

Unfortunately, unlike married parties, the area of law surrounding cohabitees is more complex. This is why it is important for parties to have discussions beforehand as to how assets would be separated should the relationship come to an end.

Owning property

Cohabitees can purchase a property as joint tenants or tenants in common.

• Joint tenants own the property equally. Therefore, if any future sale of the property were to occur, the proceeds of sale would be divided equally, even if one party contributed more money to the property. There are potential exceptions where an equal split may not apply but are very rare.
• If the property title is held as tenants in common, that generally means the property is held in unequal shares (usually due to unequal contribution to the purchase). A Declaration of Trusts would need to be signed at purchase, outlining how the parties’ respective shares are to be reflected in the property title.

In cases where the family home is one party’s sole name, as is often the case, the other party would need to show that they have acquired a beneficial interest in the property. This can be evidenced in a myriad of ways, such as financial contribution etc. the purpose is to establish intention that the property was to be owned jointly by both parties at the outset.
Cohabiting parties may also seek to consider a Cohabitation Agreement. This is an agreement which addresses assets such as properties, bank accounts and debts upon the breakdown of the relationship.

Breaking cohabitation

Upon separation, if parties are unable to reach an agreement involving the property, finances and children, a Court application would need to be issued. This would be an application under The Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”).
TOLATA makes provisions for disputes that arise following the separation of an unmarried couple who own a property together. Applications concerning beneficial ownership can also be made under TOLATA.

Under TOLATA the Court can make a variety of Orders, including but not limited to, an Order for Sale or an Order to determine how the shares in the property should be allocated to each party.

This is a complex area of law and applications made under TOLATA should be made with legal advice

We strongly recommend seeking legal advice if you are ending a cohabitation with your partner.

Mariam Cassamoali is a Family Law Solicitor at ITN Solicitors based in our London office. To discuss your situation please contact us at 020 3909 8100 or at enquiries@itnsolicitors.com