In recent years, there has been a lot of discussion surrounding couples being less inclined to get married and this has been widely reported in the media. There are many reasons for the decline in marriages, including the increasing cost of living, the cost of a wedding, the fear of divorce because of high divorce rates. There is also less stigma surrounding couples living together out of wedlock and societal views have changed overall.
It is crucial to understand that married and unmarried partners do not share the same rights. If you are not married to your partner, you should take precautions to ensure that you are not left in a difficult situation if your relationship ends, or your partner dies.
When you marry someone, you automatically acquire legal rights which means that you can make financial claims against your spouse should you divorce in the future. Unfortunately, this is not the case with cohabiting couples, which can sometimes put individuals in challenging circumstances. This typically causes problems with the family home if the property is solely owned by one person in the relationship.
It is a common misunderstanding that living with your partner constitutes a “common law marriage”. This is untrue and regardless of the length of the relationship, unmarried couples are not afforded with legal rights or protection if they separate in the future. This could seem inherently unfair, particularly if an unmarried couple has been in a long-term relationship or has lived together for many years. There is a lot of debate surrounding the topic and property law is often criticised for being outdated. Many people struggle to comprehend that they are not automatically entitled to a share of a property after separation, regardless of the property’s purpose, their contributions towards family life, length of time living there, and so on.
The Trusts of Land and Appointment of Trustees Act 1996 – How Can it Help?
It is possible to bring a claim under The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) in some circumstances. In Civil Law, TOLATA allows the Court the power to resolve disputes surrounding the ownership of a property for unmarried couples.
If someone believes there was a common intention to share the property, which was either expressly documented or implied, they may have an interest in the property even if they are not the legal owner. They may be able to show that the property was held on trust for them, and that they have a “beneficial interest” in it.
The Court’s powers under TOLATA are quite narrow, however the three main types of application that can be made under TOLATA are as follows:
- To decide who is entitled to occupy a property;
- To decide the nature and extent of the ownership of a property; and
- To decide whether the property should be sold.
At Consilia Legal, our family solicitors are experienced in dealing with TOLATA cases and are happy to advise you about bringing or defending a TOLATA claim.
What About if We Have Children Together?
Having children together with an unmarried partner, does not alter the legal entitlement to a property. However it can alter who occupies a property during the children’s dependency. This can result in a parent being able to remain living in a family home until the children are no longer dependent or taking a higher proportion of the equity from the sale of a property to ensure the children’s housing needs can be met with both parents. It should be noted however, that any financial provision awarded is for the child and not the parent and so any property or monies awarded to meet the housing needs of children will need to be returned to the paying parent at a future point in time.
What Can I Do to Protect Myself if I Live With My Partner, But We Are Not Married?
TOLATA is a very complex area of law and common intention can be difficult to prove if there is no express declaration of trust. We strongly advise you to take all necessary precautions to protect yourself if you are cohabiting with someone. It is possible that you could end up in a situation where you bring a TOLATA claim but the court determines you do not have an interest in the property. At that point you may have spent a significant amount of money on legal fees and could also be liable for the other party’s legal costs.
TOLATA assists individuals post-separation, but you should attempt to protect yourself prior to the deterioration of a relationship.
There are three main ways to protect yourself if you are in a cohabiting relationship. They are as follows:
Declaration of Trust – a declaration of trust can be entered into by two or more parties when they purchase a property together. It documents the legal arrangement in which they will own the property and what they are entitled to.
It means that individuals can be specific about their interest in a property. For instance, if someone contributed a higher percentage to the purchase price, this can be factored into the declaration of trust.
Cohabitation Agreement – A cohabitation agreement is a contract between two unmarried people who live together. It outlines the arrangements for property, assets, and other relevant financial matters. The agreement specifies how finances will be distributed if the relationship breaks down. Cohabitation Agreements are extremely cost-effective and are not restricted to only dealing with property. They frequently smooth out the process and eliminate post-separation disagreements over assets. They can also be adjusted throughout the relationship if the parties’ circumstances change.
Will – It is important to be aware that under the rules of intestacy, unmarried cohabitees do not automatically inherit the other person’s share of property if they die. If you are unmarried and want your partner to inherit your share of the property when you die, you should have a valid will in place that stipulates this.
If you would like to arrange a free 30-minute consultation with a member of our Family Team for advice surrounding Cohabitation Agreements or TOLATA claims, please do not hesitate to contact us at enquiries@consilialegal.co.uk or telephone 0113 322 9222.