When breaking up is even harder to do

On behalf of Attwaters Jameson Hill posted on Monday, January 2nd, 2017

It may not be easy to think the unthinkable and imagine a rift with your partner, but not all relationships endure and the aftermath can be messy. Many of the rights available to married couples or civil partners may be clarified by the law, but when you cohabit it can be dangerous to assume that your rights are clear. Here, we explore the issues behind cohabitation agreements.

So you’ve found the house you want, agreed a price, can’t wait to get started on the decorating – but first there’s a minefield of paperwork to get your head around. Even for a 2.4 family, it’s no easy process when it comes to signing up for the mortgage and battling all the other legal matters. But what if you and your partner aren’t married? What if you both want to own the house and contribute to the household kitty, but you don’t have that all-important wedding band on your finger?Then, there’s the issue of offspring. What if you have children and want to ensure that that same beautiful home will rightly find its way into their hands should anything happen to you? When a person is not on the legal documents to a house, it is difficult to fully prove whether or not that person has a property interest in that house. For many modern families, these are exactly the kind of issues that should become apparent during the house-buying process.No-one wants to predict a relationship split, or a tragedy of any sort, but it does make sense to plan for the unforeseen. In recent times, those very issues have been the reason behind many couples entering into (or at least considering the prospect of) a cohabitation agreement. Indeed, it’s no longer a piece of paper requested by the richest set of celebrities. It’s a document that makes sense for so many. Louise Eady, a senior family law solicitor based at our Loughton office, says plenty of people are consulting her and her colleagues about the requirements and implications of such an agreement – while others still leave things to chance.

“For all sorts of personal reasons, more and more couples are moving in together or buying houses together without getting married,” she points out. “That means more people who require specialist advice about their circumstances – and guidance on how to arrange their affairs and property in an appropriate way. While the majority of society think there is absolutely nothing unusual about living together without a marriage certificate, the law still doesn’t recognise the status in the way we might like it to.

“You might well be surprised what a difference a marriage certificate makes when it comes to all things property-related. Until the legal system catches up with the reality of modern day living, the law relating to cohabiting couples is complex and archaic. If your relationship with your partner breaks down, and ends up the subject of a legal battle, the outcome might not be what you’d expected.”

She goes on: “Take the example of the couple that each owns their own property, and then they decide to sell both houses and buy one home together. The couple trust each other, so, despite the fact that the profits from the respective sales aren’t equal, they ask for the property in joint names. Without any formal document stating how that share should be divided, it is taken that any future equity in the property would be divided evenly. In the event that the relationship goes sour this can come as a surprise to the person who made the larger contribution.”

Such cases are not uncommon for solicitors like Louise. They are used to hearing about such problems, and they realise that, until the law changes significantly, there will be plenty of people caught up in the complications of a live-in arrangement without marriage. As well as issues for those buying together, Louise points out that there can also be problems where one person moves in to a house owned by a partner.

“Sometimes a person can move into a partner’s home and pay towards outgoings and the mortgage for quite some time,” she says. “Where something goes wrong in the relationship, a lot of people assume that the idea of ‘common law husband/wife’ theory exists. In reality, there is no such thing. When a person is not on the legal documents to a house, it is very difficult to fully prove whether or not that person has a proper interest in that house. It can result in a rather painful and drawn-out legal case to sort everything out.”

It is for all these reasons – and more besides – that Louise is at pains to encourage cohabitants to think about agreements. However rosy your relationship at present, she urges live-in couples to discuss a few key factors, and give serious thought to getting an official agreement drawn up. She says that no-one wants to take the shine off the idea of people living together, but she’d urge people to look at the possible pitfalls.

Think about your rights of occupation (detailing who has the right to stay in the home if you split up), your rights on the death of your partner, your rights regarding contents bought by you or as a couple, or how your cohabitation might affect children from previous relationships or marriage. Getting those things sorted out more formally could make life a lot simpler and, in the long run, a great deal happier.

 

What you need to know about buying a property as an unmarried couple:

  • If you buy a property on a joint mortgage, you can either be joint tenants or tenants in common. Either way, you are each jointly and individually responsible for the payment of the mortgage.
  • As tenants in common you can state the size of each person’s share in the property. Joint tenants automatically get equal shares and surprisingly this is how most people own their properties.
  • If you have contributed to the purchase price in unequal shares, you should be tenants in common to protect both of you.
  • The other difference is on death. Joint tenants automatically get the other half of the property if the other joint tenant dies, but as tenants in common you can leave your half to whoever you wish, as long as you make a will. This is particularly important if one of you has adult children from a previous marriage or relationship and you want to protect their inheritance.
  • If one person pays the entire deposit or a greater share of the repayments on the mortgage, you still own an equal share of the property if you are joint tenants unless you make a written and witnessed agreement stating otherwise.

 

What the law says:

  • Just because you have lived in your partner’s property and contributed to the outgoings this does not mean that you automatically have a claim against the house. This is the case even if you have children.
  • There is no such thing in law as a ‘common law wife’. You will have to prove that you made contributions to the purchase or upkeep of the home. It is not taken for granted. This is still the case even if you have children.
  • Cohabitating partners are under no legal obligation to make maintenance payments for one another in the event of a break up. However, if there are children of the relationship one partner will have to make maintenance payments for the children.
  • There is no way to claim against your partner’s pension.
  • If you do not have a will, your partner may have to apply to court for financial provisions from your estate in the event of your death.
  • Any other types of asset held in joint names (for example joint accounts) are likely to be shared equally in the event of a breakdown regardless of where the funds came from.
  • Unmarried fathers do not automatically have rights to their children.

For more advice on any of these issues, you can contact Louise Eady or one of the family law team.

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