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The laws of cohabitation

Marriage? Pah. Patriarchy. Irrelevant institution. Why bother? Well yeah but no but. No one’s forcing you down the aisle, but what are your rights when you move in with your partner? Not much cop is the answer. So we asked titans of family law, Sandra Davis and Alex Brereton of Mishcon de Reya, to set out the do’s and don’ts of cohabitation. So you don’t get… y’know… shafted.

DON’T believe there is any such thing as a “common law marriage”. In England & Wales, just being in a relationship with somebody does nothing to the ownership of your assets. In other words: No rings, no things.

Unlike in a marriage, even if you’ve lived together with your partner for decades, the starting point is that the real economic (or “beneficial”) ownership of your home reflects how the legal title is held. As such, if your name is not registered on the title then you will have no automatic interest in its legal ownership, and therefore no interest in any money generated by its sale. In other words: Sharing is caring – get your name on the deed.

DON’T think that the position will be any different if you have children. If your relationship with your partner breaks down, the Court may order housing provision for you until your children reach the age of 18, but this won’t generate a legal or beneficial interest for you in the value of the relevant property. In other words: The kids don’t make it alright.

DO your research into what could happen if you break up. The Court has the power to alter the beneficial ownership of your home to reflect you and your partner’s shared intentions. For example, if you have contributed to mortgage payments or works which enhance the value of the property on the shared understanding with your partner that you would derive a proportionate degree of ownership, then the Court can enforce this by declaring you beneficially entitled to whatever percentage of the value of your home it considers appropriate. However, it is often reticent to do so in the absence of considerable evidence. Even where this exists, litigation is always inherently risky, plus there’s the issue of what are likely to be significant legal costs. It is therefore generally better to agree upon the beneficial ownership of your home during happier times, if that means you can avoid litigation if it all goes wrong. In other words: Better be safe than so-so sorry.

DO think carefully about what you want. If you are moving into your partner’s property, consider what the financial arrangements are going to be. If you think it’s likely that you’re going to be helping with the mortgage repayments or paying for any maintenance or improvements, are you concerned that this won’t automatically generate an interest for you in its ownership? If so, you should discuss this with your partner and try to establish a common intention as to how your contributions should be recognised. In other words: Talk about money – it doesn’t mean you are not in love.

DO, at the very least, get an email or letter from your partner confirming your agreed intentions and keep detailed records of any expenditure you make pursuant to that arrangement. In other words: paper trail.

BETTER YET, you should both independently instruct solicitors to prepare a binding cohabitation agreement. It will settle the issue of who beneficially owns the home in which you live and, if jointly, in what proportions. It can also include a mechanism to alter the beneficial ownership depending on your respective financial and/or other contributions, or conversely it can state that you do not want the beneficial ownership to change in the future, even if your financial arrangements do. The major benefit of having such an agreement is that it prevents a Court from imposing its own view of whether your intentions have changed over time. It therefore gives you certainty and peace of mind in the event of a future sale of the property or a dispute over ownership. In other words: seek professional help while the sun is shining.

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