Cohabitees' Rights and Cohabitation Agreements

Property disputes between cohabitees and those who live together without getting married.

Cohabitation and Living Together

The law is very different for cohabitees or those who cohabit and live together without getting married from those who have got married.There is no such thing in English Law as a ‘Common Law’ wife (or husband). The law treats cohabitees and those that live together as separate people, with no automatic rights against each other if the relationship breaks down. Property belonging to one party will remain owned by that party, unless very special circumstances exist. Rights with regard to children could be restricted as there is no automatic parental responsibility for a father who is not married to his child’s mother unless he is recorded on the birth certificate.

Couples who have not married will not be able to claim a share of property belonging to a former partner on the breakup of cohabitation, no matter how long the relationship has lasted. If property is in his name, it belongs to him, and if it is in her name it belongs to her. In divorce, the courts have an unlimited right to vary property ownership between married couples on divorce but not so with cohabitees.

Differences in the legal treatment of married and cohabiting couples

Inheritance.

Married Cohabitees Answer
If one dies intestate the other will inherit a large part of the estate No automatic inheritance rights when one partner dies Make a will

Ownership of property.

Married Cohabitees Answer
Even if the property is in the sole name of one spouse, the other spouse will have a right to claim a share on divorce Non owner has no right to claim unless there is a written agreement or trust principles apply Draw up a Cohabitation agreement or trust agreement.

Maintenance.

Married Cohabitees Answer
On divorce or separation either spouse can claim maintenance from the other No right to claim maintenance from the other Draw up a cohabitation agreement

Right of occupation.

 

Married Cohabitees Answer
A non-owning spouse has a right of occupation of the matrimonial home No right of occupation if a non owner None

Ownership of household contents.

Married Cohabitees Answer
If the marriage ends in divorce, the Court can adjust the ownership of all matrimonial assets to achieve a fair result Will receive only items paid for and belonging to themselves None

Parental responsibility for Children.

Married Cohabitees Answer
Both parents automatically have parental responsibility Only the mother has parental responsibility Make a parental resposibility agreement or apply to the Court for a parental resposibility order

Guardianship of Children.

Married Cohabitees Answer
On the death of one parent, guardianship automatically passes to the other On the death of one parent guardianship will only pass to the other parent if he has parental responsibility. Apppoint a guardian in you will or make a guardianship agreement.

Protection from violence.

Protection is available to married and unmarried couples but there is slightly less scope for unmarried couples and little for same sex couples.

There are also many tax and benefit advantages for couples who are married.

The family home

The main problem that cohabitees can face following a breakdown of their relationship concerns the family home. For couples who are married there is a legal presumption that they are both entitled to a share of the family home. It is largely irrelevant in whose name the house is held as the Court has complete power on divorce to divide up the home and family assets between the spouses.

The position is very different when a couple are not married. There is no presumption that the home is family property. It will be considered as owned by the person whose name is on the title deeds and it is largely irrelevant that the house was shared between the parties. This presumption is however reputed in the following circumstances:-

• if there was an agreement between the couple to share;
• if there appears that there was a common intention to share or ;
• if one party had promised the other a permanent home.

In addition to this it must be shown that:-

• the party believed that he or she would have an interest in the property;
• that he or she acted to their detriment reliant on that belief;
• the legal owner or of the property knew they were acting to their detriment.

Evidence to show an intention that a house was intended to be jointly owned would include:-

• correspondence between the cohabitees supporting an agreement that the property was to be considered owned by both even though put in the sole name of one of them;
• where the deposit for the property was provided by the person whose name is not on the title deeds;
• where mortgage repayments were made by the person whose name is not on the deeds even though the mortgage was taken out by the other partner;
• where the person whose name is not on the title deeds has done a great deal of work to the property;
• where the person whose name is not on the title deeds can show that she has acted to her detriment in consideration of a promise made by the other.

The courts have declared that where cohabitees agreed to buy a house together, but the legal title is put into one persons name because that’s person misled the other, a share can be granted

There are, however, exceptions where for the sake of fairness the court can vary the ownership rights. These are very fact specific and on which individual legal advice will always be necessary:

  • where the property was jointly acquired, and there is evidence to show an intention that it be jointly owned;
  • where a party directly contributed to the acquisition of the property so as to show an implied intention that it was joint property;
  • if there was an understanding between the parties, and the non-owning partner has acted to his or her detriment in reliance on this understanding. A usual example is payment of the mortgage by one party on a property in the other partner’s name.

Unmarried couples, when buying a home together, should always before completing their purchase give careful consideration as to how the property is to be held. How are the sale proceeds to be divided if the relationship breaks down and the house is sold? The options are to hold the property as beneficial joint tenants or as tenants in common. The decision may be based upon intended contributions to the purchase of the house. The intention should be recorded in a cohabitation agreement or in a trust deed.

Maintenance between cohabitees

There is no right of maintenance between cohabitees to maintain each other, either during or on the breakup of a relationship. The position, however, is different with children, where a duty is imposed by law to maintain all biological children whether or not the parents are married.

If one partner dies without making a will, his or her property will pass to their relatives, and not automatically to their former partner. An exception would be property held as beneficial joint tenants, which will pass automatically and outside of a will.

claims to property owned by a deceased partner can be established under the Inheritance (Provision for Family and Dependents Act) 1979. However, disputes over property between unmarried couples are messy, can be most acrimonious, and have every potential to be expensive.

There are a number of things which can be done if you are intending to move in with a partner. Whilst not being particularly romantic, they are most sensible, and can lead not only to the avoidance of problems if the relationship ends, but an understanding during the relationship.

  • Make a will.

Each partner should make a will. If a partner should die without making a will, his or her property will pass under the intestacy rules, often to a relative, or even a former spouse. A will can always be amended or revoked if circumstances change, and would become invalid should you marry.

Cohabitation Agreements

A cohabitation agreement is a simple record of what was agreed in respect of property, money, and claims against each other when it was decided to set up home together. They set out the practical arrangements which have been agreed when two persons decide to live together. By setting those out in writing it is shown that both intend to be bound in the future by what has been agreed now.

Although the law provides little protection for the rights of couples who live together outside of marriage, it will enforce what has been agreed between them. It is therefore sensible, if future arguments are to be avoided, to decide the ‘terms’ of a cohabitation and write them down in this agreement. This need not be difficult or expensive.

Making a this agreement will also make you think about the financial implications of living together and concentrate your mind on what should happen if things do not work out. It will also help avoid arguments and settle any dispute which arises whilst you are together.

 

Cohabitation agreement templates

The following will usually be included in a cohabitation agreement:

• Who owns the home? If it is to be jointly owned and if so in what shares?
• Is the non owner going to acquire any share in the property?
• What will the arrangements be if you decide to sell the home and buy another property?
• Who is to pay the household expenses?
• Who is going to pay for all other living expenses?
• Who is going to pay for furniture, repairs, decoration and the like for the home?
• Who will own the furniture and household affects?
• What changes will there be if children come along?
• If either of you have children from previous relationships, how are they to be supported?
• What events might bring the cohabitation agreements to an end or require renegotiation?
• If the property is in one or partners name, what is to happen if he/she dies?
• What are to be the arrangements should the relationship ends?
• Who will pay for the household outgoings – electricity, gas, water bills etc.
• Who will pay for repairs and improvements to the home
• How will you decide on the is repairs and improvements
• In what circumstances will the home be sold
• On sale, how will the sale proceeds utilised.

 

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Related FAQs

Will a cohabitation agreement give me complete protection if we split up?
Not necessarily, but it will help. It will be a clear record of what was agreed between you, with the purpose of being legally bound and likely to be enforced by a court.
I am going to be borrowing some money from my father to buy the house we are purchasing together. How can this be confirmed?
A properly-drawn up cohabitation agreement will record who contributed towards the purchase of the house and how the sale proceeds are to be divided when you sell.
What do I do if my partner won’t leave our jointly owned home?
When a house is jointly owned there is an implied entitlement for each owner to live there. This is a right which a court will not interfere with without good cause. In the case of domestic violence an occupation order may be available, and even where there is not been violence, the court might exceptionally order your partner to leave until matters can be sorted out. If you and your partner are no longer to live together, you will need to consider whether the house is to be sold or whether you are able to acquire his share.
I am thinking of asking my girlfriend to move in with me. If she does, will she then have a claim on my house?
Your girlfriend moving into your house does not in itself give her any rights over it. If she is to have any claim to rights over your property, these would have to be either expressly or impliedly given. The danger could be if she contributes to the property, such as by paying for improvements. Contributions to living expenses are irrelevant. To avoid any possible future problems you should enter into a cohabitation agreement with her, which can expressly state that she has no interest in your house, and deal with the position and any rights should your relationship come to an end.
What do I need to think about if our relationship is over and it looks like we are going to split up?
Before deciding finally that your relationship is over you should discuss this with family and friends and consider very carefully what life will be like as a single person. It may not be as rosy as you’d think, especially as a single parent. If having taken your time and thought things through carefully your decision is final, it will be time to tell your partner and children. How you tell particularly the children is most important. You will need to explain the practical arrangements to the children and whenever possible this should be done together by both parents.
I paid over £5,000 for a new kitchen when we moved into our home. Can I get this back when we sell?
All will depend upon your intentions when you purchased the kitchen. Was your intention that it would be for the home and joint benefit of you and your partner or was it to be yours alone? If the latter, was this communicated to your partner and did he agree? These are always difficult questions for a court, as what was agreed and intended is often not apparent, accept where there is a cohabitation agreement. You must try to reach an agreement with your partner.
What is the difference between a cohabitation agreement and a deed of trust?

What is the difference between a cohabitation agreement and a deed of trust?

Do I need a cohabitation agreement, as the house is just in my name?

You certainly do. This will establish that your partner has no interest in the property unless you decide to give them an interest for a financial contribution to the house or work carried out by them. These are always difficult questions for a court, as what was agreed and intended is often not apparent, except where there is a cohabitation agreement. You must try to reach an agreement with your partner.

What are my rights if me and my partner split up?

Unless rights and entitlements towards each other were agreed and promises made with the intention that they would be legally binding, an unmarried couple have no rights and claims against each other if their relationship fails.