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Cohabitation – a new way foward?

Posted
March 11, 2013
Family Law

According to the Office of National Statistics, the number of cohabiting couple families has increased from 2.1 million to 2.9 million since 2001.  It is increasingly apparent that more people are choosing to cohabit with their partners first, before deciding on marriage later on.  What they may be unaware of, are the legal implications of their choices, particularly if they later separate.

There is no such thing as a ‘common-law wife’ in the eyes of the law and cohabitees will not have the same remedies available to them upon the breakdown in their relationship, unlike married couples.  For this reason, it is important when setting up a home together to agree the terms on which the property is to be held and how it is to be treated in the event that the relationship ends. Parties need to decide whether the property is to be held on a joint tenancy or a tenancy in common.  A joint tenancy operates on the principle of survivorship, whereby should one party predecease the other, the surviving party will inherit the entire interest in the property.  By contrast, with a tenancy in common, parties have separate and distinct shares which they can leave to whomever they wish under a will.  With a tenancy in common, it is advisable to have a Declaration of Trust prepared, to record the size of the shares each party holds in the property to reflect one party’s greater contribution towards the purchase of the property.  Should the relationship end and the property be sold, a Declaration of Trust will be instrumental in deciding how the sale proceeds are to be divided between parties. A Cohabitation Agreement can also be beneficial in recording any agreed terms in respect to the property i.e. mortgage repayments or rent, household expenses and also how the property is to be dealt with in the event of a break-up. Lastly, whilst the financial options available to married couples on divorce do not apply to cohabitees on separation, there are certain remedies which cohabitees can apply for on the basis that these will benefit any children of the family. At stevensdrake, our Family Team can advise you on making a financial claim on behalf of the children for housing and maintenance, the legal implications in respect to property on separation and the drafting of a Cohabitation Agreement. 

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