We can advise former cohabitants as to their respective entitlements on the breakdown of their relationship.
Couples involved in a cohabitation relationship do not currently have the same legal rights as those who are married or in a civil partnership. When a couple are married or in a civil partnership and the relationship ends, matrimonial and civil partnership legislation allows the courts to deal with the financial arrangements in relation to the family assets including property and maintenance. Where an unmarried couple are living together and the relationship ends, there is no such legal provision. The legal principles which apply when cohabitation breaks down are mainly found in trust and property law.
Ownership of the home
A couple involved in cohabitation breakdown should ensure that they fully understand the difference between owning a property together as Joint Tenants and Tenants in Common. If they own a property together as Joint Tenants, then they both own the whole and either can apply to the court for an order for sale and for the proceeds to be divided, usually equally. There are no distinct shares of ownership. In addition, on the death of one of the couple, the survivor will become the sole owner.
Owning a property as Tenants in Common means that you each own a distinct share in the property. If the shares are not specifically set out in the Transfer Deed or a Trust Deed, the assumption will be that each owner owns 50% of the property. If the couple purchased the property as Tenants in Common, only a declaration of trust, setting out their respective shares in the property, will be decisive. In addition, on the death of one of the couple, the survivor will not become the sole owner, as the deceased person’s share will pass in accordance with his or her will or under the intestacy rules. The intestacy rules do not make provision for a cohabiting couple so it is essential that they make wills. In some limited circumstances, it is possible for the survivor to make a claim against the deceased’s estate.
It is strongly recommended that if you wish to own the property in unequal shares that you advise your solicitor of those shares so that this can either be recorded in the Transfer Deed or the terms of the ownership of the property can be set out in a separate document called a Trust Deed.
If only one of the cohabiting couple is the sole legal owner of the property, the presumption is that he or she also owns all the beneficial interest in the property. In this situation, the other person will have to establish a claim in equity (resulting, constructive trust or proprietary estoppel).
Occupation of the home
If a non legal owner does not have any beneficial interest in the property he or she will have no right to remain there and may be excluded by the owner at any time on giving reasonable notice. Having said that, there are several ways to protect occupation rights for non legal owners.
Many of the problems faced by couples at the end of a cohabitation relationship can be addressed during the relationship by the use of a deed of trust or cohabitation agreement