It’s now estimated that as many as 1 in 5 families – over six million people – live together as couples, yet in the UK there is still no law that gives unmarried couples the same legal protections as those who are married if they separate. The Cohabitation Rights Bill is still far from being enacted. Lord Marks of Henley’s Private Members Bill sought to protect the rights of same sex couples too, as well as those who had been living together for three years. writes David Hodgson, a Partner in our Family & Divorce team.
Given our Prime Minister has himself lived in several famously documented cohabiting arrangements, and recently married for the third time, it’s all the more surprising that an essential piece of legislation to make society fairer has so far escaped his levelling up agenda. The argument that the Tory Shires would look down on the perceived diminution of marriage isn’t credible when at the last census The Guardian’s research indicated that at least 33% of Britons, and over 50% in some recent polls, do not identify with any faith, which is so closely aligned with the institution of marriage.
So, whilst the Government delays the legislation what can you do to protect yourself if you have been living together for some time, but are now thinking of separating?
Invariably I see clients who are principally most concerned about what they should do if they’ve bought a house together, and have children. In most cases the law falls back on principles of property and trust law which are far more restrictive.
When a property is purchased in joint names, unmarried cohabitants will either buy their home as joint tenants or tenants in common in specified shares. Joint tenants will have equal rights to the entire property, and, upon death, their share of the property automatically passes to the survivor outside of any Will. Tenants in common will own the property in specified shares and can pass their share of the property to whoever they choose under the terms of their Will.
People buying a property together do so usually when their relationship is happy and you may think that it is perfectly fine to own it either as joint tenants or tenants in common in equal shares, but you need to think about what you would want to happen in the event your relationship doesn’t last, and the property needs to be sold.
If you are putting in a greater proportion of the purchase price or paying more of the mortgage, you may want the sale proceeds to be distributed according to your financial contributions. If you are paying 75% of the cost of the property, you may well think it fair that you should receive 75%of the sale proceeds if the property is sold.
However, if the property has been bought as joint tenants or tenants in common in equal shares, then the presumption is that you would only receive half. It is extremely difficult to go beyond that presumption and there needs to be compelling evidence to be able to do so.
Just because you may be making a greater financial contribution there may be other factors you may want to consider, for example if you have children together or if one of you pays the mortgage and the other pays all other household expenditure.
However, you arrange your family finances, you need to try to agree what you think would be fair if the relationship doesn’t last. It isn’t sensible to say that you will own your home 50/50 and hope for the best. The relationship may be long-lived, and you may feel that at the end of it that an equal division is fair, but what if it only lasts a matter of months or no more than a few years. Would you feel differently if you have made unequal contributions?
The conversation with your partner can be a tricky one at a time when the relationship is in good shape. In simple cases it may be enough to have a ‘Declaration of Trust’ stating how you own your home and the percentages.
In more complicated situations, you may also want to consider having a more detailed cohabitation agreement. For older people, there will be other aspects to consider, and any agreement may need to tie in with your inheritance planning.
It doesn’t need to be an expensive process but seeking a solicitor’s guidance if you’re in a relationship without being married, could be the best move you make.
I believe Parliament will one day pass a Cohabitation Rights Act, because society will ultimately demand it of its MPs. Whether this Government will be the one to level up social inequality, and provide protection to cohabitees, remains to be seen.
Bishop & Sewell’s Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in the Legal 500 for their expertise.
If you are affected by similar issues or would like to have a related discussion in confidence, please call me on 020 7091 2869 or email: dhodgson@bishopandsewell.co.uk
The above is accurate as at 21 December 2021. The information above may be subject to change during these ever-changing times. The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
