If you are living with someone without being married and the relationship breaks down or one of you dies you might think you have similar rights to married couples. You may regard yourself as a common law husband or wife. This is incorrect. Cohabitants have very few rights that arise out of the relationship. For example, you cannot claim maintenance from your cohabitant partner.
If you intend to live in a property in your partner’s sole name or a property which is held in your joint names, you should seek advice as to your rights on separation in relation to the property. How the property is owned or contributed to financially will have a great bearing on how the property should be divided and whether you automatically have a right to a share of it. Sometimes a court might go behind the legal title and decide upon ownership rights differently to a 50/50 split simply because of what you agree or contribute during the time that you live together.
There have been cases where sole ownership of a property has been challenged where it can be established that the parties contributed to the purchase of a property without actually registering ownership of it prior to or during cohabitation. Further, there have been recent cases where the court has held someone to a promise they made in terms of how the property would be treated, when subsequently that person changed their mind and their partner acted upon the promise made to them. The strength of your case will of course depend on what evidence you have. This not only applies to circumstances between cohabitees in a relationship together but also to other family members who have reached an agreement in relation to a property purchased in which one of the parties resides and the other does not.
Equally, there have been cases where joint ownership of a property has been challenged when one party commences cohabitation with another who already owns a property and then the property is transferred into joint names on receipt of a contribution. Your position will depend on whether you own the property as “beneficial joint tenants” or “tenants in common”. Sometimes the purchase documentation will not specify either of these. In these circumstances it will be presumed that you have equal shares unless you are able to establish something different based on the sort of principles contained in the leading case in this area. If you own the property as “beneficial joint tenants” you own half each and nothing that either of you have done during your relationship affects this. If you own the property as “tenants in common” then the size of your share should have been specified. If they have not been specified, you will have to establish the size of your share based on similar principles described above. Where the documents are clear that will stand unless you can show that there has been fraud or mistake.
If you and your partner have children together, or if your partner dies and has not made a will, then you should also seek legal advice in relation to what can happen and whether you are entitled to make a claim for either you or your childrens’ benefit.
To avoid uncertainty, you may wish to consider entering into a cohabitation contract. This is an enforceable agreement setting out what you would both want to happen in the event of your separation.