Joanna Toch, family law barrister at myBarrister, recently wrote for Female First about the rights of unmarried cohabiting. While the law is uncertain and being reviewed, she strongly recommends writing agreements down.
Since 2003, the number of unmarried heterosexual couples in the UK has increased by 700,000. The figure now stands at 2.9 million, making this the fastest growing family type – and 1.2 million of these families have dependent children.
If all is well in the relationship, so much the better. But what happens if the relationships breaks down. Who legally owns what? The issue that is likely to be of most contention is property, closely followed, where relevant, by children.
The first thing to consider is whether the property is registered in your joint names at the Land Registry, or in one name only. That is the legal ownership. If the title is in two names, the presumption is that you can both live there or share the proceeds if the property is sold.
“Equitable” ownership gives you the same benefits but your name is not recorded on the legal title. Sometimes, equitable ownership can be proved by setting up a trust, which is a written agreement spelling out who owns what in reality, even if ownership is not formally recorded. The time to have a trust prepared, ideally, is at the time of purchase of the property.
It is also possible to show equitable ownership by arguing there was an agreement to share the property benefits that did not get recorded in writing. The courts will then examine whether there has been a ‘common intention trust’, either by parties making an agreement verbally, or more controversially, by looking at how each person has lived their lives.
What about occupation of the property? One of the parties may be
able to get an ‘occupation order’ from the court if they can persuade the court that the ‘balance of harm’ is in their favour to stay in the property. If you have children and you are the main carer, you can apply to live there until the children are grown up.
Whether you apply for an occupation order, children order or trust order, the courts have a wide discretion. This area of law is ripe for reform because cohabitants struggle to understand their legal rights.
Until the laws surrounding cohabitation rights change, or, at the very least, become clearer, the best thing you can do to protect yourself is to regulate your position by making a written trust, or a cohabitation agreement.
These written agreements aren’t popular because they are completely unromantic. But, believe you me, it is worth doing. Buying property jointly without a marriage certificate or a written agreement just makes lawyers rich and keeps judges busy.