Cohabitation: Understand Your Rights When Living Together
Cohabiting with an unmarried partner? Find out what the law says about cohabitation and avoid the "common law spouse" myth.
By MyLegalAdviser - Last Updated March 2018
It’s not uncommon for people moving in together to have little-to-no idea how the law treats cohabitation (living together).
According to one study, as many as 1 in 4 people assume that by moving in together they will have a “common law marriage” giving them similar rights in the property as if they were married - which is not the case!
To help you understand your rights, we've put together this guide to cohabitation as well as how you can make a Cohabitation Agreement (also known as a Living Together Agreement) to set out your rights.
What happens when unmarried couples who have been living together split up?
Whilst the phrase “common law marriage” is used as an everyday term in England and Wales, it has no legal basis. A couple cohabiting will not be treated as if they were married. It’s important to know this because the law can sometimes be very unfair for couples who choose not to marry but live together and later split up.
For example, if a person owns a property which their partner moves into and they live there together for 20 years and raise a family, etc., this doesn't give the partner any rights over the property. In fact, it’s entirely possible that the partner who didn’t own any of the property, and who possibly sacrificed their career to raise children, would have no claim to any ownership in the property. With no share of the property, children to look after and having been out of work for such a long time, this could leave that person in a very difficult situation. Ouch!
COMMON LAW SPOUSE MYTH: there's no such things a common law spouse. You'll need a cohabitation agreement/Will to ensure your partner will be taken care of.
How does property law work in England and Wales?
Before discussing cohabitation any further, it’s important to explain a little bit about how property law works in England and Wales. A property can be owned either as joint tenants or as tenants in common. Joint tenants means all the owners have an indivisible share of the property which automatically passes to the other(s) on death. Tenants in common means owners have distinct shares (e.g. 25%/75%) which will pass to their heirs on their deaths.
When more than one person buys property, they will need to specify whether they will hold the property as joint tenants or tenants in common.
What should you do if you want to put an agreement regarding ownership in writing?
Where people are buying a house together and they want to regulate their ownership in more detail than simply who owns what percentage, it is common to enter into a Declaration of Trust. A Declaration of Trust can go into lot more detail about the specifics of the property ownership and can include provisions regarding, for example, varying the shares of ownership (e.g. if one person is paying a larger amount of the mortgage) or when a party can force a sale of a property.
What about a Living Together or Cohabitation Agreement?
A Living Together Agreement is similar to a Declaration of Trust, but it sometimes also covers day-to-day matters unrelated to ownership rights. For example, it might set out who gets to keep the dog or cat and whether or not each party can invite others to stay at the property.
For a Declaration of Trust and/or Cohabitation / Living Together Agreement to be binding you’ll need a lawyer to draw it up and both parties will need to be independently advised before signing.
Can this be done once you’ve bought the property?
Absolutely, but it’s important that you speak to a lawyer to ensure it’s done correctly. Otherwise you run the risk of the agreement not being enforceable and having to go to court with an agreement which may or may not work.
Isn’t it a little awkward and unromantic?
Unfortunately there’s no real way of getting round this! If you’re buying a property and moving in together though, chances are you’re both adults who appreciate that sometimes practical steps need to be taken.
Isn’t is going to be an expensive exercise? Can’t we just do it ourselves?
If you do, you run the risk of the agreement being unenforceable. If both parties aren't fully aware of their rights and obligations under the agreement (which generally means they were each advised by an independent lawyer) the agreement isn't likely to stand up in court.
In the long run, getting an agreement like this in place could save a huge amount of time, money and anxiety if you get into an argument about ownership. With MyLegalAdviser, you can get free, no obligation quotes, from a range of specialist lawyers to help you figure out exactly how much you should be paying.