What are our legal rights as a cohabitating couple?
Thu 27 April 2023
Figures released by the Office of National Statistics report, 3.6 million cohabiting couples living within the UK in 2021. However, there is still a perception that a common law marriage exists by virtue of cohabitation and as such legal rights will follow. Sadly, this is not the case.
Currently the law that deals with cohabiting couples in the Trust of Land and Appointment of Trustees Act 1996 (TOLATA).
The starting point with any co-owned property is to look at how the property held legally. The majority of properties are held jointly as joint tenants meaning in the eyes of the law each owner is treated as equal. However, this can create issues if one of the co-owners dies as the other acquires their share in the property which may not be something they want to do.
The other way parties holding a property jointly is as Tenants in Common. The main difference here is that parties can hold the property jointly or in unequal shares. This is the preferred option where one owner has put more money into the property than the other. The Courts will find that distribution should be in accordance with how the property is legally held. The rules states that the law must follow the title.
TOLATA is particularly important when a party wishes to establish an interest in a property when the title to the property does not reflect the true position. The court has to be satisfied that there was an understanding or arrangement between the parties that the non-legal owner had a share, whether standard or enhanced in the property. This will usually involve evidence that the owners have entered into discussions about departing from the legal ownership of the property. This has to accompanied by some evidence such as significant payments towards the property or home improvements.
So, until the law changes, how can couples provide themselves with some reassurance?
One way would be to enter into a cohabitation agreement. Such agreements provide for what should happen if a couple were to separate, this can save a couple a great deal of stress at a later stage. These types of agreements act as insurance and like insurance policies its hoped that it has never required.
Another way to settle matters is by a way of a separation agreement. A separation agreement works in the same way as a cohabitation agreement in that it clearly sets out how items are to be divided. The main difference is that this comes at the end of a relationships. Agreements like these can be a way for parties to protect the interests.
Early legal advice is essential both to know your rights and to ensure that you enter into any cohabitation or separation, knowing the potential pitfalls and how best to guard against them. Entering into agreements will save you time and money. Whilst we never want to think about a relationship deteriorating, having agreements will place, will ensure that should the worse happen, in a similar way to insurance, you know that you are covered.
If you would like more information on cohabitation or separation agreements, please contact us by email or phone..