TaxDec 5 2022

The law needs to support cohabiting couples

  • Describe some of the challenges facing cohabiting couples and property
  • Explain what happens when one of the couple dies intestate
  • Explain the property situation of a cohabiting couple in a relationship breakdown
  • Describe some of the challenges facing cohabiting couples and property
  • Explain what happens when one of the couple dies intestate
  • Explain the property situation of a cohabiting couple in a relationship breakdown
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Approx.30min
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The law needs to support cohabiting couples
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For example, if a settlement cannot be reached between the cohabiting couple, either through negotiation or alternative dispute resolution, the route to any resolution will likely be an acrimonious and costly one as they have to pursue their claim through the Trusts of London and Appointment of Trustees Act 1996 (known as TOLATA). 

A cohabiting couple that separate will not only have to deal with the emotional fallout from the failed relationship but also the financial one should they wish to assert their claim.

Under TOLATA, the court’s powers are generally quite narrow: it can for example only make an order a sale of a property and declare the parties beneficial shares in the property, and then there is usually the requirement to look back at what has been said and done by a couple during their relationship and cohabitation together rather than what is fair at the time of separation.

As the law currently stands in the UK, a cohabiting couple that have decided to separate will not only have to deal with the emotional fallout from the failed relationship but also the financial one should they wish to assert their claim or beneficial interest in the property they were living in together during cohabitation. 

What do cohabiting couples have to do when they separate?

If an unmarried and cohabiting couple separate, neither of them automatically acquires a legal interest in assets, including property, held by the other, regardless of how long they have lived together. 

Every cohabiting couple’s living situation is different, and therefore the starting position would be to look at who legally owns the property and how outgoings such as the mortgage and bills were paid.

If, for example, one partner owns the property and the couple separate, the starting position would be that the partner who owned the property would keep it and the other would not be entitled to anything from the property.  

However, there are certain situations that could mean the partner who did not legally own the property could be able to argue that they were entitled to a share of the property, otherwise known as a ‘beneficial interest’ in the property. However, it would be for them to prove their claim to this beneficial interest. 

It is clear that this is not a particularly straightforward area of law. 

Given that there is no such thing as a common law marriage and cohabiting couples have no legal rights, any claim would need to be brought under the laws of property and trusts (TOLATA), which would be used to resolve any sort of dispute of this nature.

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