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Five things to consider before moving in with your partner

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In England and Wales approximately 61.3% of the population are living as a couple, namely cohabitees, writes family law specialist Kim Okell.

The figure is growing, and more people see moving in together as their main commitment to one another rather than marriage, but how can each person ensure security for themselves in the event of separation? I am often asked about ‘common law marriage’ and unfortunately, this just isn’t something which actually exists in the UK.

Cohabitation law is harsh, and the rights provided are not the same as those of married couples. The law on this matter is dated and it is therefore vital to consider the following:

1)  Make a Plan of Action

Both parties should consider the purpose and intent of moving in together.

This can be important in the event of negotiating settlement following separation as to what agreement has been made. For example;

  • Is there a view to marrying or any other significant arrangements for the future?
  • Will you consider children and a stable environment for them?
  • What will your finance arrangements be? Will you set up a joint account?

All of this and more will enable both of you to understand the other’s expectations.

2) Consider how the Property is to be held: Joint Tenants or Tenants in Common

If you purchase a property jointly, both parties jointly own the whole property, and this provides equal rights. If one party were to die, the property automatically transfers to the survivor.

If the property is purchased as Tenants in Common, each party owns a distinct share. The latter may apply if the property is purchased using unequal contributions. Further, the property does not then automatically pass to the survivor and you can pass on your share in your Will.

Rights to a property upon separation is one of the most difficult aspects of cohabitation law. Without proof of shares or evidence of contributions, it can be difficult to establish rights or an interest. For example, if one party moves into a property solely owned by the other party and has children, upon separation, you do not have any right to the property share unless you can establish an interest. This is very difficult to do.

3) Obtain a Declaration of Trust

In the event you make an investment into the property whether jointly or solely, you may wish to seek a declaration of trust.

This records how the property is owned. For example, one party may contribute a sum of £20,000 for the purchase of a new kitchen and wish to reclaim that upon separation. A declaration of trust will assist greatly. This can also be used to record contributions towards the mortgage.

This legal document records the parties position in terms of the property. A Cohabitation agreement is more comprehensive and confirms the more detailed position of all assets/agreements if parties separate.

4) Obtain legal advice and a Cohabitation Agreement.

A Cohabitation Agreement is a legal document setting out any agreements you both make in the event you wish to separate.

It can prevent any difficulties in establishing each parties’ financial settlement and children issues regarding who the child lives with and spends time with. It offers a safety net given the harshness of cohabitation law. In order for this document to be binding, you will need to consult with a specialised solicitor to draft and assist with the finalisation of matters.

5) Keep a log of work you undertake on the property and receipts for any maintenance

Although difficult to prove who did what and who contributed towards maintenance of the property, the same can carry some weight in terms of negotiations or if the matter proceeds to Court. You must have very strong evidence, however. Therefore, ensure all receipts are kept and logs made.

Extra measures

  • There are extra measures you can take, such as considering a Will.
  • In the event a separation does occur, and financial matters have been agreed and settled, consider a Separation Agreement to document the position. Although not legally binding, it records the parties position and can carry weight at Court, preventing future claims, in the event of a dispute. This is in essence a contract. It is important to have this drafted by a specialised solicitor.

You can contact us here for more information and advice