Co-habitation – perils and protection

by Kidd Rapinet on February 5, 2019
Richard-Tymkiw

“Let me not to the marriage of true minds, Admit impediments. Love is not love. Which alters when it alteration finds,  Or bends with the remover to remove..”(William Shakespeare, “A Midsummer Night’s Dream”)

Although this quotation from the Bard extols the virtues of true love, some relationships inevitably will change.  In this article, we look at some of the more common problems which may arise where a relationship has broken down between parties who have been living together but have not married.

Those in a common law relationship do not have the same rights in comparison to the entitlements which arise from marriage or a civil partnership.

Some common questions which might arise on a separation:

  1. Our home is in my partner’s sole name – what are my property rights – Unhappily these may be non-existent or very limited and quite possibly expensive to pursue.  Your only remedy might be to look to the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA).  You would need to show there that had been a “common intention” for you to benefit from the property or its proceeds once sold.
  2. I have been paying the household bills while my partner was paying the mortgage. Does that not count? – The Family Courts have no powers to award compensation either because of the length of your relationship or any financial contributions that you may have made.
  3. Is there anything which I can do to try and protect my position? – It is open to you and your partner to enter into a Deed of Trust.  This is a legally binding document.  The Deed can specify how the beneficial interests in your home are to be held (e.g. 50:50)
  4. My partner earns considerably more; if we separate I am likely to lose out financially from the income which he contributes. Can I do anything about it? – You have no rights to maintenance under family law.  However, a Cohabitation Agreement may be able to afford some comfort.  It could record your current contributions towards the mortgage and domestic outgoings.  It could also set out what should occur should your relationship ever break down.

(A word of warning.  Cohabitation Agreements are not set in stone.  As a relationship develops, the original force of it may alter or even weaken.  However, a Family Court may find its contents persuasive, particularly if it is based upon clear and full disclosure of means and legal advice has been taken.  Ultimately a Family Court does have the discretion to override their provisions.

  1. We have been living together for many years. We have never married.  What if my partner should predecease me? – It is best that both of you should consider making Wills and if you wish to provide for each other from your respective estates.  This is far more preferable than having to make claims afterwards if your partner should predecease you.  One door lays open: that would be to launch a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  This permits a surviving cohabitee to make a claim against the estate of their deceased partner.  However such a claim may not be straightforward.  It may be opposed by the other beneficiaries.
  2. My partner has passed on without leaving a Will. Do I have any rights? – If your partner has died without leaving a Will, this means that they will have died intestate.  The laws of intestacy do not make any allowances for the claims of unmarried cohabitees.  This will normally mean that the deceased’s assets will pass on to other family members.
  3. We have children; what about their rights if we should separate? – You should look to the protections afforded by Schedule 1 of the Children Act 1989.  Although the Court has a complete discretion, it is open to an unmarried carer to apply for regular maintenance of a child or any children under this Schedule.

Love, care and commitment should always be the golden threads within the tapestry of any relationship.  However, forethought and agreement upon what is to be done should the relationship sour, may save on tears, stress and expense for both partners in the unhappy event of a breakdown.

Richard Peter Tymkiw, Family Lawyer and Senior Litigation Partner, Kidd Rapinet LLP