CO-HABITATION: What to do in the Event of Separation

April 26, 2016

The Office of National Statistics has stated that co-habiting couple families are the fastest growing type of family in the UK. Co-habitation means living together outside marriage or civil partnership. There are various legal consequences of co-habiting and you should seek professional legal advice if you are considering entering into a co-habitation relationship, already living with your partner or if the relationship has ended.

When purchasing a property jointly it is important to establish how the property is held i.e. a Joint Tenancy or a Tenancy in Common. The right of survivorship only applies to joint tenancy so when one co-owner dies the other surviving owner becomes entitled to the property.  This may suit some co-habiting couples as their partner will automatically be entitled to their share in the property upon the death of one co-habitee, avoiding any potential claim from third parties.  A tenant in common has an undivided share which may be disposed of by will or transfer to a third party.  This may enable co-habiting couples to protect their individual share in the property.  Before purchasing together unmarried couples should enter into an agreement regarding how proceeds of sale are to be allocated following completion of the sale of the property or in the event of separation or death.

Where a joint mortgage is registered against the property, both cohabitees are liable for the full amount until the mortgage is completely repaid. If you fall into arrears, both joint owners are legally responsible for repayment of the mortgage.  In the event of separation or where one joint owner predeceases the other, it is important to contact your mortgage provider immediately so that repayment adjustments can be made.

If you are a co-habiting couple and the property is held in one party’s sole name and you have not been registered as a joint owner, then upon separation the property still belongs to your partner. As you are living at the property at the invitation of your partner, their ownership is unaffected.  If you have financially contributed towards the maintenance or upkeep of the property you may have acquired an interest in the property.  Whilst it is unlikely you would acquire an equal share in the property, depending on the nature of the contribution the Court may be able to define it. As a joint owner of the property you can insist that the property is sold and seek division of the proceeds.  This can be done as part of a written separation agreement that sets out an agreed position regarding joint finances, property and arrangements for any children.  A separation agreement can be entered into by unmarried couples and can be put before the Court for ratification.  There is no duty on unmarried couples to financially support each other after separation but there is a duty to financially support any children of the relationship.

Prior to purchasing a jointly owned property it is important to obtain tax advice to ensure the purchase is tax efficient. Inheritance tax can be a major problem for cohabiting couples, particularly those with substantial assets. Unlike married couples and civil partners who can leave everything to their legal partner without incurring any inheritance tax liability, anything left to a cohabiting partner over and above the nil rate band attracts an inheritance tax liability of 40%. This could leave cohabiting households with significant financial challenge in the event of the death of one party.  If a cohabiting couple have not made wills the surviving partner will not automatically inherit on death. Under the rules of intestacy a cohabiting partner is entitled to jointly owned assets only. If there are children then the estate of the deceased will pass to them when they reach 18.  Where there are no children, the estate passes to the deceased’s relatives, for example parents or siblings, but not to the surviving partner. Cleaver Fulton Rankin, are happy to assist you in drawing up a will or separation agreement and if you require further advice on any of the issues raised in this article please contact a member of our Private Client, Family Law or Property teams on telephone 02890 243141, or email at info@cfrlaw.co.uk or visit our website at www.cfrlaw.co.uk.

Please note that the content of this article is for information purposes only and advice should be sought from a professional advisor.