Debra Wilson (née Mo), Partner
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Cohabitees (couples who live together who are not married) are a reflection of the diverse family trends that have evolved over the last few decades. Divorce rates have increased, with a corresponding decrease in the number of marriages contributing to greater incidences of cohabitation.
Most decisions that are made to live together are founded on mutual trust and confidence. There are circumstances which will compel individuals to enter into a Trust deed as to their share of the property. For instance, the increasing incidences of friends seeking to buy a place together to combat property prices rising relative to income.
In such circumstances, it is likely to be a condition of the mortgage that they enter into a deed setting out their rights and obligations to each other. Where there is a greater inclination towards trust however, such as in family arrangements to live together, there is a higher chance that there is no such trust document or agreement.
When the home sharing relationship breaks down, the question becomes whether the person leaving is entitled to receive a share of the property. Or, in the event of no payment of any such share, whether that person can force a sale of the premises.
The law in relation to property disputes between cohabitees is less straightforward than for married couples. There is a common misconception that after living together for a while, a couple gain rights in the same way as a married couple. The courts cannot order one person to support another by paying maintenance unless they are, or have been married. There may however, be circumstances giving rise to a claim against property.
There is presently no differentiation between the legal position as regards heterosexual and same sex partners who cohabit. This will change with the passing of The Civil Partnership Act which received Royal Assent on 18 November 2004 and will come into force in December 2005. Same sex couples can then acquire a new legal status: 'registered civil partners'. If the civil partnership breaks down, the Act aims to deal with financial claims in a very similar way to the ancillary relief provisions for married couples.
Nonetheless, as in the case of heterosexual couples there will, of course, be many same sex couples who choose not to register their partnerships. The current provisions that the law makes in dealing with property disputes will therefore, continue to apply to those individuals.
Where home-sharing breaks down between cohabitees, the courts approach is to consider the course of conduct between the parties relevant to their ownership and occupation of the property, and their sharing of the rights and responsibilities that have arisen. The court takes into account all conduct which throws light on the question of what shares were intended. The law in this areas is complex and has given rise to irreconcilable and conflicting cases.
The focus is normally on two questions:
(a) whether there is evidence from which to infer a common intention, communicated by each to the other, that each shall have a share in the property; if there is, then (b) what is the extent of the parties' respective beneficial interests in the property?
Where there is no evidence of any discussion as to the amount of share which each was to have - each party is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. Therein lies the complexity; the court more often has to infer a common intention that the beneficial interests in property is to be shared.
If you are living together in a relationship where you are not married, and that relationship breaks down, you need to be sure of your rights. This area of law is not always dealt with by Family practitioners, especially where no children are involved. You need a lawyer who has expertise in litigating home share breakdowns.
We commonly encounter cohabitees who have tried to negotatiate, but the dispute has broken down into litigation requiring legal representation in proceedings. Anthony Gold can provide the specialist litigation expertise required to overcome such disputes.
We have convenient offices located just outside London Bridge Station. For details of any of our three offices where our property experts are based, please visit our website www.anthonygold.co.uk or contact: d.wilson@anthonygold.co.uk
