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Cohabitation/TOLATA
Many consider that once they have been living together for a set period of time they are a common law husband or wife and that they then have certain rights. This is not the case
For example, it is not possible to claim maintenance for yourself from a partner, if you have not been married or entered into a civil partnership. This applies regardless of the length of time you have lived together. In addition, neither of you would be able to make a claim against the other’s pension.
What are my rights in a cohabiting relationship?
In a cohabiting relationship, there are no dedicated legal rights to maintenance (for yourself), nor a share of assets should the relationship breakdown. This is irrespective of the length of the relationship or whether there are any children involved.
Instead, co-habitation disputes need to turn to property and trust law for redress. The principles are still evolving and disputes can often be protracted and expensive to resolve.
Cohabitation and children
The situation is different if you have children together. Maintenance can be claimed for any child of the relationship by the parent with care from the absent parent. This can be agreed between you and confirmed in a written agreement or a claim can be made via the Child Maintenance Service. For more information on how to make a claim and how to calculate child maintenance please click here.
Claims can also be made for financial provision via the Courts for any relevant children under the Children Act 1989. Such provision is not to be in place of child maintenance, if this can be claimed via the Child Maintenance Service. Such claims can include a claim for a lump sum, for a property to be settled on the children until they reach majority, for school fees and for a child with special needs.
It is imperative that you seek advice from a family law expert, if you need to pursue such a claim.
Cohabitation and property
If you own a property jointly with your former partner you may need assistance if there is no express declaration as to how the property is to be held and one of you is claiming more than 50%. The presumption is that you own the property in equal shares unless there is an express agreement to the contrary. In the absence of an express agreement, it is for the person claiming a greater interest to show that the shared intention was that the property was to be held in unequal shares. This will be a heavy burden and it will only be in exceptional circumstances that the presumption will be rebutted.
There are an extensive range of factors which the Court must take into account when ascertaining the true intentions of the parties, these include; the nature of the parties relationship, how finances have been structured, any verbal statements made by one party to the other, the reasons why the property was purchased in joint names, or otherwise, the purpose for which it was acquired, how the purchase was financed, any financial contributions both when the property was purchased and subsequently, whether the parties have children and any advice or discussions at the time the property was acquired to shed some light upon the parties intentions.
Equally when a property is registered in the sole name of one party, the presumption is that only that party has any interest in it. It will be for the person who is not an owner and is claiming an interest to rebut that presumption.
We therefore recommend that if you are cohabiting with a partner and you want to have clarity about property or other assets that you have built up together, you should ask us about a living together deed, also known as a cohabitation agreement, supplemented by a will. Our team has the experience and expertise to draw up such agreements that will accurately reflect your wishes.
At Judge & Priestley, we have the experience and expertise to deal with any disputes that may arise due to a breakdown of a cohabiting relationship. Even in the good times, we can also help you to draft the necessary agreement(s) to ensure the protection of your rights and future, should your current cohabiting relationship breakdown.
What should we do to protect ourselves legally?
A Living Together Agreement / A Cohabitation Agreement
A cohabitation agreement in the form of a deed reflects how you will split your assets and debts, including property, savings, investments, joint purchases and so on in the event of your separation. The agreement can also include ongoing support arrangements for your children in the event of the breakdown of your relationship.
Having a cohabitation agreement is important, as having joint ownership of your home, or even if it is in the name of just one of you, may not accurately or completely reflect your intentions. For example, if you are named as joint owners on the title under what is known as a “joint tenancy”, under English law the house is regarded as owned in equal shares, with the automatic rights of survivorship, even if one partner contributed a greater share to the purchase price. You can also both hold the property as joint owners in unequal shares, known as “tenants-in-common”. A cohabitation agreement can address issues of this nature.
A Will
It is advisable to have a Will in place to ensure that so long as you hold the property as “tenants -in- common” you can pass on your share of the property through a will.
We are equipped with the right experience and resources to draw up a document that best suits your needs. By engaging us, you can be confident that your family’s future is secured should you face any relationship problems.
If you would like to discuss this matter with one of our specialist solicitors, please contact us on 020 8290 7341 or 020 8290 0333 to make an appointment.
