People choose to live with each other for any number of reasons but most commonly it is because they wish to make a life together.
We can choose to get married or register a formal same sex civil partnership or just live together and from day to day there may not seem much difference either way.
But what happens when the relationship breaks down? “I have lived with him for over ten years so I am his common law wife”. Sadly not.
English law does not recognise such a thing, you are either married (or in a formal same sex civil partnership) or you are not. This is important because married couples and civil partners get to have the assets in their relationship reviewed and divided under the wide discretion given to the Court by the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 where fairness and equality are watch words. People simply living together have to rely on the significantly less flexible law of trusts and property ownership. This can mean if you do not own your home jointly with your partner that when the relationship fails even after many years you can be homeless and without the capital to start again. The same principles apply to savings and investments and even the contents of the home where ownership is more difficult to prove.
If you own your home with your partner you can generally expect to receive a share and (dependant on what the documents say) perhaps an equal share of any sale proceeds. If you do not then you must invoke the complicated law of equity and trusts to try to establish that you should receive something upon sale.
This can often mean a dispute which will often be expensive and lengthy and which can be particularly difficult to deal with when you are upset by the end of a relationship and you need to find somewhere to live.
The Government has asked the Law Commission to look into this area and certain recommendations have been made to reform the law to provide a more predictable way of resolving these disputes but for now we are left with the reality that non-owners often get nothing.
This problem does not only arise upon separation but also should your partner die without leaving a will or does not include you in their will. If you are not married or in a Civil Partnership you will not be automatically entitled to anything from the estate of your partner and could find you have no share of the family assets and your home is sold from under you. You may have the right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1973 if you have lived together for two years or more but this would involve legal proceedings. Even if successful this would probably mean you would only receive what you need for maintenance but not ownership of assets. This situation can easily be remedied by the making of wills and this is another good reason to make a will or to review your will if you have one.
Making a will is very important even if you are married or in a civil partnership for reasons we will cover next month.
It is possible to deal with the issue of co-ownership of assets after they have been bought by way of an agreement but why not deal with it at the time of purchase. Legal advice should always be sought by both parties.
Case law concerning rights for cohabitants is changing all the time and while there are established legal principles that might create entitlement to non-owners in special circumstance you should seek advice. If you wish to know more please seek legal advice from a solicitor who specialises in this area of law. Prevention is certainly better than an uncertain chance of a cure.
Head of Litigation, Paul Finn Solicitors
Tel: 01288 356 256