Living Together & Cohabitation: A Guide

When a long term relationship breaks down it can be difficult to decipher how property should be shared. When a couple lives together, and a relationship breakdown, there are many considerations for division of property. I have many years of experience assisting couples in this area of law and can offer bespoke advice to your situation. Call me today on 07917 711 887 or get in touch today.

Cohabitation and property division

The Law Commission produced recommendations for reforming the law as it applies to cohabiting couples and has suggested new and less complicated ways of sorting out property matters at the end of a period of living together.

However, at the moment, if a shared property is in the name of one party, and the other party wants to establish an interest in it, there must be a lot of evidence to support the claim. The general rule is that an interest in property can only be given away in writing, but there are certain circumstances where this rule is relaxed. These are called “implied trust” situations. The most persuasive evidence is being able to demonstrate that you have paid part of the purchase price or have made mortgage repayments (this leads to what is called a “resulting trust”).

Also, if the owning party has made promises that the claiming party relies on to his or her detriment or has done physical work on the property – or where there is a common intention that the property should be shared even though this was never put into writing – the claiming party may be able to show an interest (this is called a
“constructive trust”)

When a property is bought by two people together, the conveyancing solicitor will usually explain to the parties that there are two ways of owning property:

• Joint tenancy, where each party owns the whole of the property and where if either party dies the property will pass in its entirety to the other owner; or
• Tenancy-in-common, where shares in the property are set out cleanly as percentages and each owner can leave his or her share by will to whomsoever he or she chooses.

The decision that the parties reach about ownership of their property is recorded carefully on the transfer document and will be conclusive. Where there is an express declaration of trust like this, it is unlikely that anything that happens subsequently will be of any relevance to property interests.

In some circumstances where for example, where there is no express declaration of how the property is to be owned on the transfer document – there is still scope for the court to consider the implied trust principles referred to above. The court may also look at the course of the parties’ relationship and their financial dealings to see if it helps come to a decision about who owns what.

If matters cannot be agreed, there has to be a court application under the Trusts of Land and Appointment of Trustees Act 1996. It is essential to get assistance from a specialist solicitor if you are considering this course of action.

Financial support for children of unmarried parents – the Children Act 1989, schedule 1

Where parents of a child are not married to each other, schedule 1 of the Children Act 1989 provides the parent with whom the child lives with a mechanism for obtaining financial support of a limited kind from the other parent, over and above the child maintenance to which she or he is entitled.

The parent with whom the child lives can apply to court for any of the following orders:

• Additional child maintenance, if the other parent’s income is higher than that which the child support agency takes as its maximum (“top-up child maintenance”) or, for example, to pay school fees or cover special needs arising from a disability;
• Lump sum providing it is directly relevant to costs incurred for the child; or
• Transfer of or settlement of property this usually means putting a property into trust for the mother and child to live in until the child has turned 18. It is important to note, however, that only one property transfer can be made per child.

These provisions are most often used where the parent with whom the child does not live is relatively wealthy. Such applications are quite limited in use and are entirely child dependent. For example, there is no general right to additional child maintenance past the age of 17 in most cases.

The factors the court take into account when making any decision include:

• the parents’ financial resources; the parents’ needs and other responsibilities, including to any other children;
• the financial requirements of the child;
• any physical or mental disability of the child; and
• the way in which the parents, while they remained in their relationship, intended for their child to be educated or trained.

Contact Lindsay Jones Specialist Cohabitation Solicitor Cheshire, Manchester, Altrincham, Lymm, Knutsford & Wilmslow Today

This is a very complex area of law. If you think it applies to your situation, please get in touch with me online or call me on 0161 509 6338.