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Unmarried Couples, Cohabitation Agreements and Declaration of Trusts

Cohabitation is more common than marriage, however, the law relating to couples who cohabit is more complex and has not kept up with the modern age.

The majority of law relating to couples who live together is governed by old property trust law. There have over the last decade been various attempts by the Governments and then legal community to bring about change for couples who cohabit. However, none have to date been successful in simplifying the legal rights and process.

It is therefore very important that if you are considering living together, that you obtain the right advice. As the outcome if you separate may be very different to what you expect.

Whether you are considering moving in with someone or buying a house together, it is important that you set out, at the outset your intentions should you separate years later.

If you own your own home and your partner is thinking of moving in with you, you need to know how to protect the equity you have in your home.

If you are thinking of moving in with someone or giving them money towards renovations on their home, how do you ensure you are establishing a right to own part of the property? If you are buying a house together, what if one of you has savings or sale proceeds from a former home which you wish to protect if you separate? All of these questions are common and understandable, but if you do not define your interests at the outset, the legal outcome could be far different from what you thought would be the case.

If you buy a house together and you put in unequal contributions to the purchase price, unless you set out your individual shares and what your intentions are if the house is sold, then it is presumed in law that you intended to own the property jointly in equal shares. Therefore the deposit provided from savings or a gift from a parent would be lost and shared between you and your partner. You would be unable to recover the money which you put into the property fairly.

If you move into your partner’s home and pay for decoration of the property no matter how lavish, unless you undertake significant renovations such as installing new kitchen or bathroom, you may not be considered to have an interest in the home.

If you intend to pay half the mortgage, this does not mean that you establish an interest in the property, unless this is formalised by an agreement in writing. It does not matter how long you live together, there is no such thing as a common law wife or husband. If you are the owner of a house and are concerned that your new partner may try and establish an interest then you can enter into an agreement that by living together your cohabitee does not establish any legal or beneficial interest in your home.

The law relating to cohabiting couples is complex, the costs of making an application under the Trusts of Land and Appointment of Trustees Act 1996 are high. The average case will be at least £5000 and because the law relating to cohabitation is in Civil Court and not Family Court. If you lose your case you will not only have to pay your own legal costs but those of the opposition. The risks of pursuing an application are therefore high. Our solicitors are used to negotiating the difficulties which stem from the breakdown of a cohabiting relationship. We know what issues arise and are experienced in drafting agreements which clearly set out what will happen when a couple separates, lessening the worry and allowing the couple to enjoy living together, without uncertainty.

Family Team

Lindsey Canning
Director

Alison Gaddes
Associate

Victoria Walker
Family Law Executive

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