19 November 2018
Third-year student Cliona is studying law at ARU and blogging about some of the subjects her course covers. In this blog, the focus is on cohabiting couples and their legal rights.
Cohabiting is an important subject that many people, including yourself, could face in your personal life. Learning about cohabiting during the law course means that students are better prepared should the situation arise. It is also a common issue for people who come to the Law Clinic for advice and as such it is helpful to students who work there to have some background knowledge on the subject. Below I’ve written some tips based on what I’ve learned on the subject.
Couples that have been cohabiting for years often think that they are viewed in the same way as married couples and have the same rights to property. However, that is misconception that can cause a lot of stress when a relationship breaks down or one party dies. During a breakdown there is no guarantee of a nice 50/50 split. With cohabiting on the increase, it is important people know and understand the potential outcomes if things start to go sour.
Whether you look at family law, law of equity and trusts or any other law, the general rule is if your name isn’t on the paperwork, the property isn’t yours to have unless you can prove that there was a ‘trust on the basis of behaviour’ (the property was bought for both people to use and enjoy despite there being only one name), which is difficult to prove. Marriage skirts around this as it is presumed that anything bought during the marriage was for the enjoyment of both parties and the Matrimonial Causes Act 1973 says the court can distribute property according to what they think is ‘fair’; but this is not the same with cohabiting couples. Let’s imagine there is a fictional cohabiting couple, Donald and Sophie. If Donald bought the sofa and Sophie bought the table, when the relationship breaks down and they decide to end things Donald gets the sofa and Sophie gets the table. The sofa and table are not sold and the money split 50/50. It’s the same with the house they live in.
When Donald and Sophie got together, Sophie paid the deposit and continues to pay the mortgage while Donald pays the bills and does the majority of the DIY around the house. Donald and Sophie have been together for 15 years but have decided that it’s not working out any more and split up. According to law, unless Sophie put Donald on the paperwork when they bought the house or explicitly stated that the house was for the two of them for the duration of their relationship, it is likely Donald will get nothing from the house. Sophie will be allowed to live in the house while Donald must leave. He could try and dispute it in court but Donald just paying bills and doing DIY will not be seen as sufficient enough to prove that the house is partly his. This has happened to many couples and the courts often see disputes like this. Although it seems unfair, the judgement is often the same: unless your name is on the paperwork the property is not yours in any capacity.
I discussed this with my lecturers and they said that the best thing to do is to get a written agreement setting out what will happen in the event of the relationship breaking down. Who wants to do that though? Everything is all lovey-dovey and everything is fantastic when you start a relationship with someone. Who wants to sit down and say 'Now, we are in a relationship but if this relationship ever breaks down I want to take the bookcase and plates with me so please sign this document stating this'? I’ll tell you who – nobody. Nobody wants to think of the worst when the best is happening.
I’m not saying people need to go out and get married or go and get a civil partnership but it is something to be aware of if you are in a cohabiting relationship: It’s sad and unfair but it’s true. The English and Welsh courts do not recognise 'common law partners' or cohabitants as having the same rights as married couples, while some other countries do.
I know this article sounds like a lot of doom and gloom but I promise that is not the intention. The intention is just to raise a point for discussion and put forward the idea that maybe it is time to change the law to reflect the changing society. Now all I need to do is work out is how to get any significant other I have to sign a piece of paper letting me take the TV should anything go wrong.