What are your property rights if you live with your partner? During Cohabitation Awareness Week 2017 (27 November to 1 December), Sarah Evans, Partner and family lawyer at Coodes Solicitors outlines the legal differences between being married and living together.
Perhaps the greatest legal difference between married and cohabiting couples is around property issues.
The difference becomes particularly stark if a couple separates. The divorce courts will take into account each spouse’s individual circumstances, including arrangements for children, when dealing with the division of jointly owned property. However, where the parties are not married, it is entirely different.
What if a property is held in both partners’ names?
Where a property is held in the joint names of cohabitees, the way in which they hold it, as recorded at the Land Registry, will generally determine their interests in the property. If the property is held in joint names with no Declaration of Trust then the property will be divided equally, no matter how each partner contributed to it, their individual needs or the needs of their children.
If the parties have entered into a Declaration of Trust regarding the property then this will be binding on them even if there have been significant contributions by them after the purchase or their situation has changed.
What if a property is just held in one partner’s name?
Where property is held in one party’s name only the position can be even more bleak for the non-owning partner. They may be left with no protection and no legal interest in the property despite sometimes many years of living together and sharing finances. Many people still believe that if they have lived together for a period of time they will be ‘common-law husband and wife’. There is no such concept in English Law and no matter how long you have lived together you will not acquire property rights just by living with someone.
It is very important therefore for couples setting up home together to get advice at an early stage. Properly identifying the legal position and having it recorded can save significant difficulties and substantial legal fees should the relationship break down. This applies to same sex couples and heterosexual couples.
How can couples living together protect themselves?
There are a number of ways that those planning to live together can protect themselves and save any difficulties in the future. Some have not been fully recognised by the Law but recent cases have shown that Courts are more likely now to implement agreements reached freely between cohabitees than ever before. This is especially true where they have both had legal advice and their agreements have been placed in writing.
For couples planning to marry, a pre-nuptial agreement, whilst not legally binding, can provide good protection if it is properly drawn up. For those not planning to marry, a Living Together Agreement can be used to set out the arrangements both in relation to day to day living expenses and the acquisition of property, should the couple separate in future. Such an agreement needs to be backed up by the title documents for any property purchased and should also be reflected in the Will of both people to ensure their wishes are followed in the event of their death.
For advice on any of these issues, please contact the Family Team at Coodes Solicitors on 0800 328 3282.