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The myths that surround common law cohabitation

She adds: “They can make a legal claim as a ‘dependant’ on basis of hardship under inheritance laws of the Inheritance (Provision for Family and Dependents) Act 1975, which is costly, distressing and has no guarantee of success.”


Sahil Aggarwal, family lawyer at Moore Blatch, says: “Claims between cohabiting couples are dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Unlike a married couple, the relationship between a cohabiting couple is treated much more like that of a business relationship.”

He adds: “Claims under TOLATA therefore rely much more on evidence.”

Ms Stewart-Mackintosh highlights that married spouses are exempt from paying any inheritance tax on a partner’s death, whereas cohabitees are not exempt from paying the 40 per cent rate of IHT if the estate value is more than £325,000.

The length of a marriage by which the law decides how to split matrimonial assets is slightly subjective, but appears to typically cover those that last more than 10 years. 

Farhana Shahzady, family law partner at TWM Solicitors, says: “Long marriages will often lead to a 50/50 split even if most of the matrimonial wealth has come from just one of the parties. What constitutes a long marriage is not set out by statute but experience and case law points to marriages over 15 years.”

So what happens if a property is under one person’s name when a cohabitation breaks down? 

Beneficial interest

Ms Saxe says the other person is left to prove under trust law principles that he or she has what is called a ‘beneficial interest’.

In other words, that the legal owner holds the property on trust for both of them.

She says beneficial interest can be proved through financial contributions towards the value of the property, such as contributing to the deposit, mortgage repayments or renovations. 

In theory it may still be possible to prove a beneficial interest without such evidence if there was a common intention, such as an agreement in writing. 

Ms Saxe adds: “If they have children, they might agree to delay sale or a transfer until their children are older to ensure their housing needs are met. In the absence of such an agreement, an application can be made to court under Schedule 1 of the Children Act 1989 for such an order.”

Experts also stressed that married couples can benefit from a deceased partner’s pension under a marriage. 

Ms Mackintosh-Stewart says: “In comparison, cohabitees receive none of these tax perks and there is no automatic right to benefit from a deceased partners’ pension, bereavement or survivors’ payments unless they are formally named as ‘nominated beneficiary, [which] is now under legal review after the Denise Brewster case.”