Family Law – A few thoughts on Cohabitation

Increasingly these days we are asked to advise on issues between cohabiting couples.

Until quite recently most couples who chose to live  together did so for a relatively short period of time as an “trial run” before taking the next step and getting married .

Nowadays more and more couples are living together  on a permanent basis often buying property and have children together.

Although cohabitation has become the norm for many people it remains a precarious form of relationship because of the high rate of breakdown (often whilst any children are young) compared to marriage and the fact that the law has not been changed to respond.

There is a popular perception that cohabiting couples have the same rights as those who are married. This is entirely incorrect and it can prove to be a very costly mistake.

When a relationship between unmarried partners breaks down  neither has the right to claim maintenance against the other.  The only maintenance claim that can be made is for children of the relationship.  Unless the paying party is very wealthy the amount payable will be restricted to the amount required by the Child Support Agency formula.

Any issues over property rights will be dealt with under the land law principles. The Court will look at financial contributions and intentions. The Court may not exercise discretion to achieve fairness as it can (and does) when a marriage breaks down.

In our experience many cohabitants buy properties without considering fully (or even at all) the shares that each of them should have in the event that the relationship should break down.  Frequently, the party who introduces the most capital will fail to have that fact recorded.  If he/she subsequently seeks to recover more than half of the equity a costly and acrimonious struggle may ensue.

Where a property in bought in the name of one party only it can be very difficult for the other party to establish that he/she has any share at all.  He/she will have to prove a contribution in money or moneys worth and an intention (or at the very least an understanding) that he/she would receive a share in the property by reason for such contribution.  This can be far from easy many years after the event when each party has a different recollection and the paperwork (if it existed in the first place) may have been lost or destroyed.

We can assist cohabiting couples in a number of ways.

  • When buying property it is essential that a document is prepared setting out the shares that each party is to have. We can advise upon and prepare such a document.
  • Cohabiting couples should always make Wills.  They are not legally considered to be “next of kin” and if either of them dies without having made a Will the survivor will not inherit and will be left in the unenviable position of having to go to Court to claim reasonable financial provision.  Even if this is successful he/she will only receive what is considered necessary for his/her needs not necessarily what he/she might deserve. Again we can advise and help.
  • In the event that a cohabiting relationship should break down we can advise on property rights and obtain the best possible financial settlement.

Please contact us if you wish to discuss any of these issues.

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