With around 3.3million unmarried couples living together in the UK, the cohabiting relationship forms the fastest growing family type in the UK.
But with unmarried couples not legally entitled to the same property rights as those who are married or in a civil partnership, depending on how property and assets are owned, those wanting to leave a cohabiting relationship may find they are left with no stake in the family home.
Diane Matthews, family law specialist at Woodcocks Haworth and Nuttall Solicitors, explores whether cohabiting couples have a right to half of the home once the relationship has ended.
If the property is owned jointly
Property rights for unmarried couples will also differ depending on whether they live in rented accommodation or whether a property is owned together.
If you own the property jointly, firstly you should establish if the title is held as joint tenants or as tenants in common. This can usually be established simply by obtaining documentation from the Land Registry.
Joint tenants
If you hold the property as joint tenants, then you do not own shares in it but are considered to be joint and equal owners. The presumption is that each of you own the property equally.
Tenants in common
If you hold the property as tenants in common, then you each own shares in the property. Shares can be held equally, or one person can own more than the other, for example held on a 70/30 basis.
If you do hold property in unequal shares, then this would normally be set out in a document called a declaration of trust. If there’s no evidence regarding the shares, then there’s a presumption that you will hold the property in equal shares.
In some circumstances it may be possible to show that a subsequent agreement between a couple needs to be considered. For example, it may be possible to show that, although on the face of it the property is owned equally, there is a reason why this is not the case.
Such claims are fact specific and can be difficult and expensive to establish. The onus will be upon the party trying to show that there is subsequent agreement which should be taken into account to demonstrate the accuracy of what they are saying.
If the property is owned in one person’s sole name
If the property is owned in your partner’s sole name, there may be documentation confirming that you have an interest in it. Again, this would be in the form of a declaration of trust.
If there is no declaration of trust, you may still be able to show that you should have an interest in the property if you can show that:
- There was a common intention between you that you would have an interest in the property and you have acted to your detriment in reliance of this.
- You were led to believe by your partner that you had a beneficial interest and as a consequence of this you acted to your detriment.
This means that in most cases, you would have to prove that following the introduction of capital/cash into the property you did so believing that there was an agreement or understanding that this was in return for a beneficial interest in the property and, therefore, you expect to receive this capital back should the relationship end.
It really goes without saying that, before buying a property with a partner, or introducing capital/cash into a property that you either own jointly with a partner or that is held in your partner’s sole name, you must make sure that you have an open discussion about whether it is intended that you will acquire an increased beneficial interest or a beneficial interest as a result.
It would also be sensible to seek professional legal advice prior to taking such a step.
The future for cohabiting couples
Many legal practitioners agree that reform to laws governing cohabitation is long overdue. This is an area which is confusing, uncertain and, in some cases, unfair.
Back in July 2007 the Law Commission published a report exploring the financial consequences of a relationship breakdown for cohabiting couples and recommended that a new statutory scheme of financial relief on separation be introduced.
It was suggested that this should be based on qualifying contributions each partner made to the relationship. Such qualifying contributions might be financial or otherwise, such as care for the separating couple’s children.
The second reading of Lord Mark’s cohabitation rights bill took place in 2019, but with no real progress made and given the pandemic situation, it seems that little attention is being given to this area.
How a cohabitation agreement can help
To properly protect themselves in the event of a split, cohabiting couples should carefully consider having a cohabitation agreement prepared. This should be discussed between the parties to ensure that they have a common intention and a clear understanding of their situation.
Making these arrangements at the beginning of cohabitation can save considerable cost and time should the relationship come to an end.
Diane Matthews is a legal executive based at WHN Solicitors’ Blackburn office. She specialises in divorce and separation, including resolving financial and property disputes for unmarried families, pre-nuptial agreements and cohabitation agreements.
With broad experience in financial remedy proceedings, Diane is committed to a non-confrontational approach and works to provide proactive, constructive and sensible advice from the outset, while she is also experienced in court proceedings.
If you need help preparing a cohabitation or living together agreement, our specialist solicitors are here to help. Please contact Diane on 01254 272640 or by email diane.matthews@whnsolicitors.co.uk
