With the Love Island All-Stars final last Monday, and one couple already reaching boyfriend-girlfriend status, the islanders may be thinking about taking the next step¦ the big move-in. But other than agreeing where they will live, and who will take the bins out each week – what else should the Islanders consider before cohabiting?
Common law marriage or not?
With cohabitation one of the fastest growing family types in the UK, it is concerning how many people believe that where people live together for long enough, they becomecommon law spouses and obtain the same automatic rights to their partners capital, income and pensions as if they would in a marriage.
In reality, in the absence of there being any children, the cohabitees rights are limited to interests in the property only – so for example, if the cohabitees jointly owned the property, their claims would be limited to them receiving their share in the property upon separation.
This also means that if the cohabitees do not own the property jointly, and it is owned by one party – the party who is not the legal owner will not have an automatic right to any share of the equity. Whilst there are circumstances where an interest in the property may be established without legal ownership, there are various loopholes for the party to overcome.
If a cohabiting relationship were to break down and the parties cannot agree on how the property is to be divided, unlike when a marriage breaks down, the court will not look into factors such as their housing needs, financial resources or the section 25 factors in the Matrimonial Cause Act 1973.
How can cohabitees protect their interests
1. Declaration of Trust
A Declaration of Trust is a document that sets out how a property is beneficially owned and can include information such as: each cohabitees respective contributions, how the property is held and what should happen to the property in the event of a sale, or separation. It is recommended that the declaration of trust is entered into before either purchasing a property together, or where one party moves in with another where the property is solely owned.
2. Cohabitation Agreements
Another way for the eager cohabitees to protect themselves, is to enter into a Cohabitation Agreement. Similar to a Declaration of Trust, a cohabitation agreement outlines how the property is owned and each parties respective contributions. It can also go even further by recording details such as other owned properties, business interests, pensions, pet ownership etc. A cohabitation agreement can also guide the day-to-day arrangements for how you plan to manage your finances. Many people find that addressing such matters head-on and in a formal agreement removes uncertainty and the potential for conflict within the relationship, which in turn strengthens the relationship from the outset. Whilst not legally binding, these documents are evidence of the cohabitees intention and can assist in protecting rights in the event of a relationship breakdown where they have been properly drawn up.
Conclusion and next steps
It is clear that the law for unmarried couples is complex, and it is essential that expert advice is sought, whether you are experiencing a breakdown of the relationship or you want to know what can be done at the outset or during a relationship to avoid later difficulties. If you are currently in a cohabiting relationship or are considering entering into one, get in touch. Whatever your circumstances, our family law solicitors can help.
