Living together in lockdown and beyond - Boodle Hatfield

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Article
07 May 2021

Living together in lockdown and beyond

4 min read

Many couples have had to make snap decisions during the course of the last 14 months about their living situation as a consequence of the various lockdowns we have all had imposed upon us. Those in the throes of a fairly new relationship may have been forced to confront conversations that might otherwise not have happened for months or even years as to whether they should bite the bullet, 'lock down' and move in together. The alternative, particularly in March 2020, was complete uncertainty as to when it would be permitted for them to see one another again. It is unlikely that many of these couples considered the legal ramifications of cohabiting before making the rather rushed leap. 

It remains a myth in this country that common law marriage exists after living with someone for a certain period of time. Whilst this exist in other countries, it is simply not the case here. The rights of cohabitees and spouses are starkly different in this country. Once you are married, the start point on separation is that your wealth is divided 50/50. If you live together but are not married, then neither partner can claim against the other for financial provision for themselves and all that would be looked at is whether there are any joint property interests which need to be dealt with. This applies whether you've lived with someone for 5 years or 50 years - a partner does not gain any additional rights by virtue of a longer cohabiting relationship.

What if you have been living together in a property that you own jointly? 

It is best to document each partner's ownership interest from the outset to avoid any risk of a dispute. If nothing has been documented, the assumption will be that each partner owns 50% - without any documentation, it's quite difficult to prove that one partner should walk away with more than that if the property is owned jointly.

And what if you've been living in a property that is owned in the sole name of your partner and then you break up? 

Unless there is clear evidence to the contrary, the presumption is that it is solely owned by that partner and so you would have no rights to claim an interest in it on separation. Again, it is best to document any intentions as to ownership from the outset to avoid these kind of disputes. If you've made contributions to the upkeep, maintenance and improvement of the property on the reliance that you thought you had an interest in it, then it is for you to prove to the Court that the legal ownership should be disregarded and that you should be entitled to some of the equity in the property on separation. That is quite an uphill struggle and can be very costly.

Assuming there isn't really that evidence, you would simply have to move out of the property? 

Yes. The law is harsh compared to married couples who have rights to continue to occupy a family home even if it is owned by their other spouse.

What if there are children involved?

If a non-married couple have children together, then it is possible to make financial claims against the wealthier partner on separation. However, again - these are far more limited than those available to spouses who have the ultimate protection. In reality, you can make a claim on behalf of a child for the benefit of the child rather than for your own benefit. If that included some provision for housing, for example, then that housing provision would need to be returned to the wealthier partner once the child reaches adulthood.

How is it best to document intentions from the outset to avoid disputes?

If you are buying a property together, then it's vital that you speak to your conveyancing solicitor to ensure that your interests are accurately recorded. For example, if you want to own the property unequally because one of you has contributed more to the deposit than the other, then you would be advised to enter into a Deed of Trust to record this at the time of purchase. If on the other hand, one of you is buying the property in your sole name or a partner is moving into the other partner's already solely owned property, then it is worth seeking advice from a family lawyer about entering into a cohabitation agreement to regulate your financial affairs during the relationship. This document would set out with absolute clarity what the position is in relation to the ownership of the property and would make clear whether the other partner can or cannot acquire rights in the property by making financial or non-financial contributions to it. This ought to avoid any disputes at the point of separation.

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