If you are separating from your unmarried partner and facing a cohabitation dispute over finance or property, our team of specialist family lawyers is here to help you.

We understand that when a relationship breaks down it is very stressful and upsetting for you and your family. We also realise that disagreements can be hard to avoid, especially when they come to emotive matters such as finance, property and children.

Do I have the same legal rights as a married couple?

Cohabiting couples do not automatically have the same legal rights and responsibilities as married couples and it is therefore important for unmarried couples to obtain specialist legal advice on the implications of a separation to avoid the risk of a potential cohabitee dispute. 

Married couples benefit from an established legal framework that is there to  deal with property rights on divorce and to ensure fairness. This framework also makes sure that each spouse can meet their needs. But for cohabiting couples the situation is very different.

Many people live together or decide to buy a house together without giving much thought to  how they might protect their contributions and ensure they receive a share of the property should the relationship fail. The uncertainty this creates can lead to cohabitee disputes.

What is a cohabitee dispute?

A cohabitee dispute occurs between an unmarried couple who are (or wish to be) separated but they cannot agree how to share the equity in a property they own jointly, or if/how the equity in a property owned in the sole name of one party should be shared.

How are cohabitation disputes resolved?

There are several ways unmarried couples can resolve a cohabitee dispute, including through direct discussion, solicitor led negotiation, mediation, collaborative law and arbitration. 

If you are unable to resolve financial matters amicably, you may be able to  make the following applications to the court:

·       A civil claim under the Trust of Land and Appointment of Trustees Act 1996 to decide what share each party has in the property and whether the property should be sold

·      A claim for additional financial provision for the benefit of the children of an unmarried relationship under Schedule 1 of the Children Act 1989 to include housing, maintenance and school fees for example.

Cohabitation disputes – what does the law say?

In summary, if an unmarried couple cannot agree how to deal with their property on separation, the law says that:

a.     The documents that a couple sign when they buy a property will be determinative in most cases

b.     However, if it is shown to the court’s satisfaction that they had a different common intention when they first bought the property or that they formed a different common intention at a later date, then provided one of them relied on that common intention to their detriment, the presumption contained in the purchase document may be displaced.

The common intention can be expressed or inferred. It can, in certain circumstances, be imputed by the court having had regard to the whole course of dealings between a couple. 

Cohabiting couples – joint ownership of property

If you are unmarried and buying a property in joint names with your partner, you should consider carefully how you wish to own it. There are two main ways in which a property can be jointly owned: as ‘joint tenants’ or as ‘tenants in common’. 

Joint tenants

Under a joint tenancy your shares in the property are undefined and if one of you dies, the share of the deceased owner will pass automatically to the surviving co-owner. This is known as the ‘right of survivorship’. 

If you buy a property as joint tenants there is a legal presumption that you own the equity in the property equally, even if your contributions were unequal.

Tenants in common

If you buy a property as tenants in common there is a legal presumption that the share you owned at the time of purchase will determine your interests in the property at the time you separate.

If one of you dies during your period of ownership, the deceased’s share in the property will pass to their estate to be distributed according to their will (if they have one) or the Intestacy Rules (if they don’t). It will not automatically pass to the surviving owner.

For couples contributing unequally to the purchase of a property, or who have children from a previous relationship, it would be very sensible to ensure you purchase as tenants in common.

How can you minimise the risk of a cohabitee dispute?

Cohabiting couples buying a property together should enter into a Declaration of Trust, especially if they wish to own it in unequal shares. If they later sell the property, the Declaration of Trust will set out how the sale proceeds are to be divided.

It is also a good idea to also prepare a Cohabitation Agreement to record each party’s rights and responsibilities in relation to their property, finances and children. A Cohabitation Agreement will detail the arrangements both during the period of cohabitation as well as what they want to happen if they decide to end their relationship or if one partner dies.

It is important that when buying a property together, cohabiting couples ensure their wills are up to date. If you are unmarried and your partner dies without leaving a valid will, you will not automatically inherit their estate.

Get in touch with our family law solicitors

If you are thinking about cohabiting with your partner, if you plan to buy a house together or if you are separating from your partner and need legal advice or help resolving a cohabitee dispute, please get in touch with one of our specialist family solicitors.