Cohabitation

Cohabitation Legal Advice

There is a stark contrast in the rights and responsibilities of cohabitants when compared to spouses upon the eventuality of relationship breakdown. The lack of formality in a relationship makes a significant difference in the course of action available to them. The myth of the common law marriage is just that, a myth.

If you are not married, you do not have the benefit of family legislation on your side upon the eventuality of relationship breakdown. Instead you will be forced to rely upon the hotch potch of law known as ‘Property’ and ‘Trust’ Law. The Court does not have discretionary powers to reallocate property, as in the instance of a divorce, but instead the Court strives to give effect to each party’s respective intentions by looking at their course of dealing. If the Court cannot identify an intention, they will infer one and if one cannot be inferred the Court will impute one based upon the principle of fairness.

Whether you are at the outset of a relationship and wish to protect yourself moving forward by the drafting of a Living Together Agreement and/or Declaration of Trust or you are at the end of a relationship and require some assistance and advice in this regard, we are confident our Solicitors will be able to assist you in this difficult and often tricky area.

Some important facts you need to be aware of:

• Time is of the essence. This area of law is heavily dependent on evidence i.e. bank records, receipts and conveyancing files can be destroyed. Speak to a Solicitor sooner rather than later to establish what evidence you may need to collate.
• Cases where property is owned jointly and solely are treated differently.
• In sole ownership cases you have to demonstrate firstly that you have acquired an interest in the property and secondly, proceed to quantify the extent of this interest. Contributions to mortgages and renovation works often demonstrate a contribution towards a property however it can be difficult to quantify them evidentially.
• In joint ownership cases the parties will be required to quantify the extents of their interests. Again, this can be the difficult part of the case.
• Cohabitant disputes are typically dealt with under the Trust of Land and Appointment of Trustees Act 1996. Parties often claim there is a Constructive Trust or Resulting Trust (along with Proprietary or Promissory Estoppel).
• Declarations of Trust and/or Living Together Agreements are often decisive in cohabitant disputes. As such they provide certainty, can reduce long term legal costs and can manage expectations. Speak to a Solicitor in this regard and remember if you fail to prepare, you prepare to fail. At Ison Harrison we are able to rely upon our other departments to provide you with complete legal advice in these areas owing to the breadth of services we offer.
• If you have reached an agreement with your former partner about the financial consequences of your separation it may be appropriate to record this agreement in a document known as a Separation Deed. A Separation Deed will serve to record your intentions and is evidence to the Court of the same in the event of future dispute.
• The Court will expect both parties to try and resolve matters through a form of Alternative Dispute Resolution (ADR – mediation, arbitration etc) prior to the issuing of proceedings.
• Court proceedings are risky. A party who loses their case at Court will often have to contribute towards the winners legal costs.