In today’s society cohabitation is commonplace. In fact, according to the Office of National Statistics, there were 5.9 million people cohabiting in the UK in 2012. This is almost double the number of people who were cohabiting in 1996.
Given the ever increasing number of cohabitants, it is no surprise that we are also seeing an increase in the number of disputes between cohabiting couples if that relationship breaks down.
Many people still mistakenly have the belief that there is such a thing as a “common law marriage” and that their rights are therefore protected. This is not the case. When parties are married, the court has extensive powers and a wide discretion to manipulate assets in order to achieve a fair settlement. This is not yet the case for unmarried partners and you may find that your options and/or remedies are very limited if you did not take steps to protect your position from the outset. For instance, you might find that you have real difficulties asserting that you have a share in your partner’s property despite the fact that you have been making a contribution to the family.
A Cohabitation Agreement can be drawn up if you are considering moving in with someone or purchasing property together.
The agreement can set out your intentions in relation to all future arrangements whilst you are living together i.e. who will be responsible for paying the rent/mortgage and bills, how you will deal with debts and joint bank accounts etc.
It is sensible to carefully consider whether you might require a cohabitation agreement right from the outset because it can make the separation process far less stressful in the event that the worst should happen. You will have already thought about and decided what should happen in respect of financial arrangements in the event that the relationship breaks down and this can take away this additional burden at what is often a difficult and emotional time.
A Cohabitation Agreement is not automatically legally binding but provided you are full and frank about your assets, income and finances and you enter the agreement with the benefit of legal advice - it is strong evidence of intention and the court will be reluctant to depart from it (save in exceptional circumstances).
We will take information from you about what has been agreed and give you advice about the terms and whether it is likely to be seen as fair. We can also draft the cohabitation agreement for you.
If the parties are unmarried but own property together, the laws of trusts and land apply. These laws and rules are very rigid and cannot be departed from. Broadly speaking if the ownership of a property is plainly recorded, it will not be possible to depart from that (save for exceptional circumstances).
In the event of separation, it is worthwhile trying to reach an agreement with the joint owner about what will happen to the property in the first instance. We can give you advice about the different options available to you to try to settle your dispute with the other party without resorting to court proceedings. We can assist you during this process and also advise you about the merits of any potential settlement you may be considering. Please see our alternative dispute resolution
page for further information (link to ADR page)
If both parties can agree, this agreement can be recorded in a Separation Agreement which can set out the main terms. Though not technically legally binding, if both parties provide financial disclosure and have the benefit of legal advice, the agreement will be strong evidence of intention and will hold a lot of weight in any future proceedings.
If the parties cannot agree it may be necessary to consider court proceedings but we will explore all of the options with you first.
The only remedies available are those governed by the Trusts of Land and Appointment of Trustees Act 1996. The most widely utilised application is for an order for sale of the property – often because one party wants to release their equity. It is also possible to make an application to the court for a declaration as to the nature and extent of your interest in a property.
When considering whether to make an Order under this provision, the Court will take into account the following factors;
- the intentions of the person or persons (if any) who created the trust
- the purposes for which the property subject to the trust is held
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
- the interests of any secured creditor of any beneficiary.
Where there is a dispute between parties who own property together but are not married, this is usually resolved in one of the following ways;
- one party buys the other party’s share – i.e. they acquire the whole property by buying the other owner’s share
- the property is sold and the equity is divided
- the property is retained subject to a charge to be exercised at a later date and the equity is then divided – a postponed sale is most often used where there are small children living in the property
We will assist you to come to an early agreement with the other party as soon as possible to save time and costs. In the event that it is not possible to reach an agreement and a court application becomes necessary, we offer very competitive prices and payment options to make the process as simple and affordable as possible.
Free information meeting
We are pleased to offer all potential new clients a free, no obligation information meeting.
The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.
We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.