What is cohabitation?

Cohabitation is a term used to describe an unmarried couple who live together in the same household. This term applies to opposite or same-sex couples alike.

There are laws dealing with the breakdown of a marriage; however, there are currently no laws dealing with the breakdown of a relationship between cohabitees. There is no legal concept of a common-law spouse in English & Welsh law.

As a result, cohabiting couples generally have limited rights on separation or death of a partner. If a relationship between cohabitees breaks down and they cannot agree on how to divide their property, an application under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) can be made in order to resolve the dispute.

What is a cohabitation agreement?

If you are cohabiting with your partner, it is important to secure your financial position as soon as possible. This can be done through the drafting of a cohabitation agreement.

A cohabitation agreement is a contract between you and your partner which sets out your agreed arrangements relating to your joint property, assets and finances should your relationship break down. This agreement can also secure your pre-owned assets, for example, if your parents have contributed to your house purchase or if you have assets that you wish to pass to children of a previous relationship.

Contact our team of family solicitors to learn more about cohabitation agreements today call 020 7421 9421 (London) or 01483 451900 (Guildford).

Do I have a right to the family home?

One of the most common disputes between cohabitees is over the legal ownership of the family home. TOLATA deals with issues arising from the ownership of land, whether jointly owned or subject to a trust, including by those who are not married, such as cohabitees.

The basic principle of TOLATA is that the legal owner(s) of a property will also be the holder(s) of the beneficial interest in that property. This means that if the property that is lived in by cohabitees is solely owned, then they will be presumed to be the sole holder of the beneficial interest in the property. If the relationship breaks down and there is a dispute over the property, the non-owning party must show that they have acquired a beneficial interest in the property.

There are two types of trusts of land, plus proprietary estoppel, that can be relied upon by the non-owning party to demonstrate beneficial interest in a TOLATA case:

  1. Resulting trust
  2. Constructive trust

What applications can be made under TOLATA?

Under TOLATA, applications can be made to resolve disputes concerning the beneficial ownership of a property. If beneficial ownership is established, the Court has powers to deal with the following claims:

  • To determine whether a jointly-owned property should be sold
  • To quantify the respective beneficial shares that each co-owner or cohabitee is entitled to
  • To determine whether a party has a beneficial interest in the property, usually where that party’s name is not on the legal title and the legal owner is disputing the claim.

Contact a member of our team to learn more about the legal recourse available under TOLATA. Email sols@gordonsols.co.uk.

Can I avoid going to court to resolve this dispute?

Mediation

If you find yourself in a dispute, mediation is an excellent tool for settling matters quickly and cost-effectively without involving the courts.

Mediation is a way of sorting any differences between you and your partner regarding finances and children with the help of an impartial third-party, the mediator. The mediator’s role is to guide you and your partner towards a resolution and help you to reach an amicable agreement. The initial mediation session will be a joint session with your partner where the issues and your respective positions will be set out. The mediator will help to guide the conversation surrounding these issues with the aim of reaching a resolution.

Please be aware that the agreement reached at mediation is not binding, and so you will need a deed, declaration of trust, or consent order (depending on whether court proceedings have been issued) openly recording the agreements reached at mediation. We can assist you in the background with advice in between mediation sessions and the drafting and filing of this deed, declaration of trust or consent order.

If you are in a dispute with your partner, we recommend that you seek legal advice.

Get in touch with one of our team to learn more about mediation services and how we can assist.

Arbitration

Alternatively, you could go to arbitration. Family arbitration is a form of private dispute resolution where you and your partner appoint a fair and impartial family arbitrator to resolve your dispute.

Arbitration is ideal for parties who wish to resolve tricky property disputes, as you can appoint an arbitrator specialising in property and family law.

Unlike mediation, which is aimed at helping you and your partner achieve a resolution, an arbitrator will make the decision for you. The arbitrator’s decision is binding, and you and your partner will sign a form to confirm that you agree to be bound by the arbitrator’s decision.

Cohabitation Agreement Lawyer

Contact a member of our team to learn more about arbitration and how we can assist, alternatively find out more about the processes here.

Gordons Partnership has a team of excellent Family Law Solicitors in Guildford and London on hand to support you draft and implement your cohabitation agreement and assist you if you find yourself in a dispute with your partner.

About the Author

Hannah Creasey
Trainee Solicitor