Co-habitation

In contemporary Britain today, one in four adults live with someone to whom they are not married. These couples may be gay or lesbian who cannot legally marry, or couples that have chosen not to marry for one reason or another.

It is a common myth, that these couples acquire the same legal rights as a common law husband or wife, despite having lived together for many years and irrespective of whether they have brought up a child together.

The law treats the rights of married and un-married couples differently. When a marriage breaks down, the Court has wide discretion to award maintenance and determine property issues. The law affords no protection to those who are unmarried. For instance, the Court cannot award maintenance or divide a property in the same way.

Increasingly, when a non-marital relationship breaks down, disputes arise as to how much each co-habitant's share in a property should be. Where the property is jointly owned and each person's name appears on the title deeds there can be no dispute. The law states that each party owns the property on an equal basis, unless the title deeds specify otherwise.

Where a property is held in one persons' name, then the others' share depends essentially on being able to establish ownership, either through direct contributions towards the purchase price or mortgage payments and a common intention that the property was purchased for the benefit of both. Establishing this is notoriously difficult, time consuming and costly.

There are also differences as to how a deceased estate can be distributed on death. In absence of a Will, a deceased's estate will be distributed according to the intestacy rules. Ultimately, a share of the estate will pass to the deceased next of kin who may not have been the intended beneficiaries. Serious consideration needs to be given to preparing a Will, to avoid this eventuality.

To avoid potential dispute in the future, co-habitation agreements are increasingly being entered. Such agreements act as evidence confirming both parties common intention as to how property should be divided on relationship breakdown.