Cohabitation property rights – Part 1

Separation can be a very challenging and distressing process for all parties involved. Understanding the wider context to the law surrounding cohabitation will enable you to think in a logical and clear manner when deciding how to approach the division of property. Part 1 of this article aims to provide an overview of the law in England & Wales, Scotland, Northern Ireland and the Republic of Ireland. Despite the rise in cohabiting couples over the years there still remains a myth that 'common law' marriage exists but in fact these relationships do not have legal recognition in England, Wales or Northern Ireland and limited remedies are available in comparison to married couples. Although this term is also not recognised in the Republic of Ireland - The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 introduced a redress scheme for opposite-sex cohabiting couples who are not married and same-sex cohabiting couples who are not registered in a civil partnership. The redress scheme provides for a broadly similar range of orders as are available to married couples when they separate or divorce. In Scotland, for many years it was recognised that a couple could be married ‘by cohabitation with habit and repute’. However, marriage by cohabitation with habit and repute was abolished in 2006, unless such cohabitation had begun before the 4 May 2006. This leads us onto the greatest legal difference between married and cohabiting couples - property issues. As a starting point, where a property is held in one party's name, the non-owning partner may be left with no protection and no legal interest in the property despite many years of living together and sharing finances. Generally speaking, the property owner is the only one entitled to live in the property. The property owner is able to make decisions - such as selling the property without consulting their partner. However, even where one party owns the property, the other may still have some rights (a beneficial interest) and this can be established in a number of ways: In England & Wales you must show that either:

  1. the non-owner has contributed financially (i.e. paying part of the mortgage, paying more than your fair share of the other bills to enable the owner to afford the mortgage payments or making a direct contribution to the purchase of the property).
  2. the owner has agreed in writing that the non-owner is entitled to a share of the home (i.e. cohabitation agreement, trust declaration deed or a restriction has been registered against the property) or;
  3. the non-owner has acted to their own detriment (e.g. giving up their job) on the justified understanding that this entitles them to a share of the property.

In Northern Ireland you are entitled to reclaim money, such as mortgage payments that you have contributed towards the family home; however, two conditions must be met:

  • You must be able to provide evidence of the payments you’ve made, through bank statements or similar.
  • There must be enough equity in the property at the time you and your ex-partner separated.

In Scotland, you may be able to claim if you have been ‘economically disadvantaged’ (you are financially worse off) or your ex-partner has been ‘economically advantaged’ as a result of the relationship. This could be because: you’d given up work to look after your children, you were persuaded by your ex-partner to sell your property and move in with them, or your ex-partner is able to buy property because of the financial contribution you’ve made. You only have one year from when you separate to make a claim, so you should access advice as soon as you can.

Children

A partner can also apply to the court when children are involved for the right to continue living there to ensure the children's welfare. In Northern Ireland if you have children and your partner is the sole owner, you can ask a court to transfer the property into your name. The court will only do this if it decides it is in the best interests of your children. It is usually done for a limited period, for example, until your youngest child is 18 years old. Whereas in Scotland if you have children and the owner wants you to leave a court might give you rights for 6 months to stay in the home.

Rented Property

Similar rules apply when the property is rented and only one party is named on the tenancy agreement. If you are not the named tenant you are likely to need the landlord's consent to move in; you have no rights to stay if the named tenant decides to leave (though you may be able to agree a new tenancy agreement with the landlord in your own name) and again you can be asked to leave at any point (after reasonable notice has been given).

What can I do to protect an interest that I have in a partner’s property?

  1. A cohabitation agreement can deal with many different aspects of your cohabitation not just in relation to ownership of a property. It is important it is drafted by way of deed and states that both parties intend for it to have legal force.
  2. Registering a restriction against the property with the Land Registry so that there is a record on the official copy entries in relation to the property which will state that your partner cannot solely dispose of the property unless either party has a court order.
  3. Trust declaration deed is a legal document confirming each person’s beneficial interest in that property, it can be expanded to include arrangements for the day-to-day issues such as maintenance and other expenses.
  4. Having a will as unlike married couples you and your partner will not automatically inherit each other’s assets, but a will can document what you want to happen to your money, property and possessions after your death.

Jointly owned property

Where a property is jointly owned each party has equal rights and responsibilities in respect of that property. However, this is still not without its potential pitfalls, for example; even if you contributed most of the costs of buying the home you would normally only be entitled to a half share unless you have agreed otherwise (preferably in a legally binding document) and if your partner walks out on you, you are likely to be liable for the full amount of any mortgage payments. Cohabitation can be a very complex area of law and specialist guidance is required throughout the process. Please contact Health Assured on our 24 hour helpline: 0800 030 5182 if you have any queries. Alternatively, you can read further in terms of what happens when things are not amicable and what steps you need to take in Part 2 - cohabitation.

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