Family Law

On 24 March 2020, the UK’s Deputy Chief Medical Officer, Dr. Jenny Harries, announced that couples who are currently living in separate households ‘should test the strength of their relationship’ and either move in together or stay apart during the coronavirus lockdown.   

Couples deciding to move in together during the coronavirus lockdown, may intend to only live together for the duration of the lockdown period. Others may decide that moving in together should become a permanent arrangement, which they intend to continue after the Government’s lockdown measures have ended.

If a couple intends to continue living together then it is important that they consider the legal implications of living together (or cohabiting) permanently.

This article:

• Offers some information on the legal rights of cohabiting couples (particularly, in relation to property)

   

• Suggests steps that may be taken now to minimise the prospect of any disagreements between cohabiting couples in the future; and

   

• Explains how to protect legal rights which might arise (intentionally or otherwise) from the decision to cohabit 

Cohabiting Couples - Legal Rights

In England, there is no such thing as ‘common law marriage’. Whilst there has been much debating and campaigning for cohabiting couple’s legal rights to be enhanced, there is currently no consensus about how to achieve such an enhancement fairly, as people share homes for a variety of reasons.

The legal rights of a cohabitating couple are fewer than those for a married couple. Therefore, if a cohabiting couple in England seeks greater legal rights than those relayed below, they would need to either marry or enter into a civil partnership.

It is because of the fewer rights afforded to cohabiting couples that the ownership and occupation rights of a property, which they may both call their home, are often the main cause for dispute between cohabitating couples after the relationship has broken down.  Also, neither cohabitee has any right to claim financial support from the other (although financial support can be claimed for the children of the relationship).

Property rights for Cohabiting Couples

Upon separation the starting point for all ‘property’ (i.e. all assets) remains the sole property of the partner in whose name it is held. If a partner does not own assets in his/her sole name, they have no entitlement to any share of the property and potentially no right to stay in that property even if it is the family home.

However, in some situations it might be possible for the non-owning partner to make an application to the court to claim they have a ‘beneficial interest’ in the home. A beneficial interest is a right which the non-owning partner sometimes acquires over the property. Beneficial interests often arise from contributions the non-owning partner has made financially, or by virtue of reliance on a promise from the owning spouse that owing to their actions they will be entitled to such an interest.  In these circumstances, that partner’s entitlement may secure the following:

• Acquiring a right to live in the property

   

• Receiving a share of the proceeds when the property is being sold

   

• Receiving a percentage share of the property; or

   

• Receiving compensation in lieu of ownership rights in the form of a capital payment

However, applications to try to prove a beneficial interest are not easy and to succeed they require evidence of a nature often not retained or as a result in verbal promises.

The type of evidence to support such applications to prove beneficial entitlement includes:

• Bank statements, invoices or solicitor’s letters showing a financial contribution towards a mortgage or a structural/renovation works to the property

   

• Evidence of certain actions only being taken by the non-owning partner because promises had been made to them by the owning partner (e.g. for continuing rights of occupation or a legal share of the property). This evidence is sometimes found in social media messages or other forms of correspondence between the couple at around the time such assurances were given; or

   

• ·       Evidence of selling a property owned or part owned by one party to enable the couple to live together in one household. 

This type of application to the court can be costly, take time and emotion bringing with it a period of uncertainly. Outcomes can be very hard to predict, and where possible, agreements should be made to avoid an application to the court.

Cohabitation Agreements

In the hope of avoiding the need for litigation, cohabitees should consider entering into a Cohabitation Agreement. Ideally these are made prior to the parties living together but they can be made at any time during the relationship.

A Cohabitation Agreement (also referred to as a Relationship or Living Together Agreement) records (1) the arrangements applicable while partners are living together and (2) what is to happen if the relationship comes to an end.

The main issues usually covered in such an agreement may include the following:

• How the home(s) shared by the couple is to be divided

   

• How jointly acquired assets are to be divided (personal assets, gifts passing between the couple and from family members are usually retained by the party owning them)

   

• Who pays bills, mortgage or rent

   

• How joint accounts will be divided

   

• How to account for any payments a non-owning partner makes towards a property belonging to another

   

• Child maintenance and school fees (if applicable).

The above list is not exhaustive so all matters relevant to the cohabiting couple should be discussed and recorded before they live together permanently. 

Review of Cohabitation Agreements

If a couple move abroad, research must be undertaken in respect of how their legal rights as cohabitees might alter upon moving to that country as agreements may not be recognised in other countries. Adjustments to the agreement might therefore be needed to be drafted with the advice from a specialist family lawyer practicing in the country to which a couple is moving. 

If a cohabiting couple subsequently marry or enter into a Civil Partnership the division of assets (even if owned by one party) is protected by law and their legal ownership can be adjusted. Additional rights include rights of occupation of the home and claims for spousal or civil partnership maintenance. However, prior to entering into a marriage or civil partnership a pre-nuptial or pre-civil partnership agreement can be entered into to seek to protect the ownership of assets and even within a marriage or civil partnership, it is possible to protect the legal rights of a spouse or civil partner by entering into a formal Post-nuptial or Post-civil Partnership Agreement.

An existing Cohabitation Agreement may be a good starting basis for preparing a formal pre-nuptial agreement created in anticipation of marriage,  but the closer a Pre-nuptial Agreement is to the date of the wedding the less weight will be attached to it upon divorce. The advice is to plan in good time and seek legal advice

Separation Agreements

If a cohabiting couple has not entered into a Cohabitation Agreement and decide to separate permanently, they may consider entering into a Separation Agreement to deal with their future as individuals. A Separation Agreement will usually be used by a couple if they wish to make future (long or short term) financial provision for each other. It will therefore record how the property and finances will be divided as well as arrangements for any children. A properly drafted Separation Agreement made in these circumstances will avoid one party seeking the costly intervention of the court to determine the division of the assets of the relationship.