There is a common misconception within English law that there exists a common law marriage whereby long- standing cohabitees have similar rights to those who are married. This is a myth.
However, it is important to note that there are ways in which an unmarried couple can help to safeguard against potential issues should the worst happen, and the couple decide to go their separate ways.
One of the key times to keep this in mind is when purchasing a property. Sometimes a couple can contribute in unequal shares but want to share equally. Potentially this may create problems later on. It is important to record this arrangement on the transfer document. Conveyancers should and do warn clients about this issue.
Another way to make it even clearer for a couple and to protect themselves is through a document known as a Cohabitation Agreement. This document sets out in more detail the parties intentions at the time of moving in together and can be invaluable if the couple subsequently splits up as it can also include how personal possessions are to be divided.
What if a couple hasn’t entered into one of these agreements?
One piece of law, which plays an important role, is the Trust of Land and Appointment of Trustees Act 1996 (referred to as TOLATA). This deals with unmarried couples.
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 co-owner dies as the other acquires their share in the property, which may not be something they want to do.
The other way of 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 rule 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.
I am sure you can imagine, this can be difficult to establish. It is important that the parties work together to reach an amicable solution.
Another concern could be one party indicting an agreement, only to withdraw from the same at a later stage. One solution to this is to consider 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 relationship.
Both Cohabitation Agreements and Separation agreements can be drafted quickly and often at a much lower cost than to argue these matters through the Courts later on.
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.