Cohabitation

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Cohabitation

The law relating to the division of property owned by cohabiting couples varies considerably from that relating to married couples.

In simple terms no matter how long a couple have lived together, if the relationship breaks down, the parties will usually take out of the relationship the assets they brought in unless any other split is agreed.

Cohabitees cannot claim maintenance against their former partner.

Usually, the most important asset which has to be dealt with if a cohabiting relationship ends, is their home. In most cases, ownership of the property will depend on what was agreed at the time the property was purchased. If there was an agreement at that time (which is often the case) then this will normally be conclusive. So, for example, where a property has been bought in joint names and there is a declaration of the percentage interest that each party has in the property, or where a property has been transferred into joint names, then that will normally be conclusive.

If the deeds are defective or are not clear as to the parties share in the property then trust principles will be applied to establish each party's share. There will be a Constructive Trust if a common intention as to how the property would be shared can be shown - either because the parties specifically agreed this between them or because a common intention can be inferred from the way in which the parties acted and that one party relied on that common intention to their detriment.. Of course proving that there is a common intention is often very difficult because people are often relying on their memory as to what was said or done some time ago.

There is also a principle known as a 'resulting trust' which does not require a common intention between the parties for respective interests in the property. This will apply where one party contributes towards the purchase of a property. If so, it can be presumed that the contributor acquired a share in the property.

Once an entitlement to a share in the property has been established, establishing the size of the share is not straight forward. This might be apparent from the purchase deed but if not it has to be established from looking at the agreement of the parties or the common intention. This is a very difficult and changing area of the law. Cases will have to be decided by a judge in court if it is not apparent from documents.

If agreement cannot be reached then either party may apply to the court for an order for sale of the property. On such an application the court may also decide the extent of each person’s interest in the property.

When dealing with these cases the court must have regard to:

the intentions of the parties
the purpose for which the property was purchased
the welfare of any child who occupies or might reasonably be expected to occupy the property
the interest of any mortgagee.

If there are children involved the court can also make an order putting off the sale of the property to provide a home for the children during their minority.

Frequently Asked Questions About Cohabitation

What is a 'common law husband' or 'common law wife'?

The common law marriage is largely a myth. People who live together, however long they live together, do not become common law spouses and do not acquire legal rights.

If a property is registered in one partner’s sole name, how can the other acquire an interest?

This will depend on such issues as:

who contributed towards the purchase price
who contributed towards the mortgage payments (or made other payments to enable the owner to meet the mortgage payments)
who paid for improvements to the property
whether there was an express or implied agreement that one would acquire an interest in the property and whether that party acted to their detriment on reliance on this agreement.

If any of these factors are shown then it may be that an interest is acquired.

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