Cohabitation

More and more couples are deciding to cohabit and not to marry than ever before. This gives rise to some complicated legal issues and it is important to be aware of these and protect your interests in case the relationship ends in the future. There is a common misconception of a “common law marriage” where people think that if a couple lives together for a certain length of time that their relationship is legally recognised under common law as if they were married, giving them the same rights. This is not the case and when an unmarried couple separates the law does not allow the same financial rights that married partners have and a range of financial issues can arise.

The rights of cohabiting couples are fairly limited and the parties will only be able to claim in relation to the ownership of property (which is determined by property and trust law as opposed to family law) and for financial claims in relation to any children of the couple, such as maintenance claims. Unmarried cohabiting couples do not gain the right to claim maintenance or capital from the other party.

Property Disputes

Where there are no children to consider, the law assumes that jointly owned assets are divided equally and the parties would not have any ongoing financial obligations to each other. The division of joint property can be done differently if there is an agreement in place (this can be verbal or written) clearly setting out how the division should be done, creating a resulting, constructive or express trust. In some cases, one party may claim a larger proportion of an asset than they are noted as legally owning, for example, if that party made a substantial capital contribution to the purchase of the property or its upkeep or improvement. For example, when the couple move in together, one party could sell their home and use the proceeds to improve the other home that they now share. When the party separates there could then be a dispute in relation to who owns what share of the property. Where this is not evidenced in writing and there is disagreement, it is up to the Courts to decide how the property will be divided and this will be based on available evidence.

Family Law does not govern the financial arrangements that are available to cohabiting couples that separate. In these cases, the matters are dealt with instead as dispute resolution over asset ownership. The law that governs this area is the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA), which allows the Courts to resolve any disputes relating to assets belonging to the separating couple. ToLATA deals with trusts of land and covers the various types - express, implied, resulting or constructive. The Court can only grant orders in relation to co-ownership of the property. They are not able to use the legislation to alter or adjust the proportions in relation to co-ownership. This is a very complex area of law and requires advice from experts that have a deep understanding of the issues in this area.

ToLATA applications allow the Courts to set out who the owners of a property are and how it is to be divided. The use of mediation is encouraged before the parties use the Courts to resolve the issue.

Where the couple were renting a home, the rental agreement will be very important to determine rights. Only those named on the tenancy agreement or in the rent book will have a legal right to remain in the home. If both parties are named then they are both jointly and severely liable, which means that where one party fails to pay their share, the other party is liable to pay it - even when they have separated.

Settlements for Children

Where there are children involved, the parties can make an application under Schedule 1 of the Children Act 1989 for a lump sum payment, transfer of property order or settlement order. It must be stressed here that the order is not a claim for the applicant themselves- the order is made to benefit the children. Therefore, any property would generally be held in trust for the children until they reached 18 years or ended full-time education. The property then reverts to the party that funded the property.

Under this Schedule, the financial orders that are possible are:

• Child Maintenance – this can include school fees and childcare arrangements such as a nanny. It can also be used for buying a car and buying items to furnish a home for the child.
• Capital lump sum- this is to cover costs relating to the child. They can be similar to the ones for child maintenance (such as buying a car or furnishing a home for the child).
• Transfer or settlement of property to provide a home for the child.

The Courts will make their decision based on factors such as the financial resources of both parents, together with their needs and responsibilities (for example, if they have other children). The Court will also consider the requirements of the child including any disability and what the parents’ intentions are in relation to the child’s education.

Cohabitation Agreements

It is possible for the couple to have a solicitor draw up a cohabitation agreement that would cover the division of property, money and assets if they were to separate. These agreements can cover a broad range of issues including: which party is responsible for paying the mortgage and bills relating to a property; how property is owned and should be divided if they separate; how debts will be covered in the event of a separation; the division of life insurance; substantial assets as well as arrangements for the support of children.

Contact our Specialist Cohabitation Lawyers Bradford Today

Call us on 01274 350 546 or fill out our online enquiry form.