4th December 2020
Couples that live together do not have the same legal rights as married couples. In this article we answer some of the questions that arise when cohabiting couples separate.
1. Q: I have been cohabiting with my partner for over 20 years. My partner owns the house in their sole name, but we have always shared everything. Now we are separating, my partner says I will get nothing. Surely, given the length of time we have been together I should be entitled to something? Does this not class as a common law marriage?
A: When married couples separate, there are certain presumptions, protections and factors which apply when dealing with their finances as set out in the Matrimonial Causes Act 1973 and in case law. Unfortunately, there is no such thing as a “common law marriage” and just because you have spent many years cohabiting as a couple, this does not create any automatic rights for you. This does not, however, mean that you are not entitled to anything and it is important that you seek legal advice early on to understand your position.2. Q: If my partner is threatening to sell our house which they own in their sole name, what can I do to protect my position?
A: First of all, if you have any doubts about how the property is owned make sure you check the title either in your deeds or at the Land Registry. If you are unable to find out, seek legal advice.
If you are not registered on the title and believe you have an interest in the property, you may consider registering a home rights notice with the Land Registry. If this is registered, a restriction will be placed on the title and will warn any potential buyers that you have an interest in the property and that you should be notified of any potential sale. This restriction is not automatically granted to unmarried couples. You may need to provide evidence to the Land Registry to support your position that you have a genuine claim for an interest in the property, particularly if the owner defends the position.
As a last resort, you may wish to consider an application for injunctive proceedings to stop your partner from being able to sell the property, whilst a decision is being made regarding your interest in the property. These are costly proceedings and should not be entered into lightly.
You should seek early legal advice as to the best way to protect your position and how to pursue your claim for an interest in the property.
3. Q: How do I show that I have an interest in the property?
A: You would have to show that there is a trust of land i.e. that your partner is holding the legal title on trust for you as a beneficial owner. Consider this analogy: the legal title is like the wrapper on a chocolate bar and the chocolate bar is the beneficial interest. The wrapper holds the chocolate bar in place, but it is the chocolate bar that holds all of the value. It is ultimately the value that we are all interested in.
The starting point to establish a trust is to find out whether there had ever been any agreements, written or oral, between you and your partner. Did you enter into any written agreements i.e. a Declaration of Trust or Cohabitation Agreement? If a gift of money was given at the time, was a gift letter signed or was this recorded in writing? If you own the property but say you had agreed to own it in different shares, do you recall what instructions you both gave to your conveyancing solicitors at the time of purchase?
If you cannot evidence an agreement or if your partner does not agree that there ever was one, you would then need to consider what action you took towards contributing to the property. Did you put some money towards the purchase price/deposit? Did you pay for substantial renovation works/extensions to the property? Did you rely on any promises made to you by your partner when you made these contributions? It is unlikely sufficient evidence to show that you should be entitled to an interest in the property, just because you paid towards some of the bills and/or minor decoration.
Each case is decided entirely upon its own facts and there is not a one size fits all approach. It is important that you keep a clear record of when you contributed significant sums towards the property and seek legal advice early on to find out what further evidence you might need.4. Q: My partner and I have children together, but we are not married and in the process of separating. What can I do to ensure my child is financially supported?
A: You can ask your partner to pay child maintenance to support your child and if you are unsure of how much you can claim, you can have a look at the Child Maintenance Service Calculator online as a starting point.
If your partner does not pay you child maintenance, you can pursue this through the Child Maintenance Service, and they can pursue your partner and collect payments for you.
If you have not already applied for child benefits, consider doing so as soon as possible to provide some additional support as well as investigating if there are any other benefits that you may be eligible to receive. There are free resources on the government website which you can use to find this out.
In certain circumstances, you may also be able to pursue your partner for financial assistance for your child pursuant to Schedule 1 of the Children’s Act 1989 which could include periodical payments, a lump sum payment or payment towards a property for the benefit of your child. These are applicable in certain circumstances and so it is a good idea to seek advice early on.5. Q: My partner and I have been cohabiting for a while and we do not intend to get married. Is there anything we can do to protect ourselves now to avoid disputes if we separate?
A: if you are purchasing a property together, consider purchasing the property in your joint names to ensure you are both on the legal title. If either of you want to reflect that you each own different shares in the property (i.e. you put in £20,000 towards the deposit and would want this back if the property is sold, with the remaining equity being split equally) you may want to make these instructions clear to your conveyancing solicitor in order that they reflect this on the forms they submit to the Land Registry when registering your names on the title.
You may also wish to consider a written agreement detailing how you both own the property and what should happen to it if you separated. A Declaration of Trust is a document that sets out what your interest is in the property and confirms what you would both receive upon a sale. A Cohabitation Agreement goes a step further, in that it sets out your respective shares in the property, but you can also include flexible terms setting out how the property will be sold, who will have conduct of the sale, how your other assets (joint bank accounts/savings/contents) are to be divided and if there should be any provision for financial support in the future.
If you are unsure what document you might need, please get in touch with us.
For further information on co-habitation rights or any other aspect of family law, please contact the Thrings family team.