Cohabiting parents account for half of all family breakdowns. Despite the fact that cohabitation is overtaking marriage there remains a myth that common law marriage exists and that cohabitants have rights.
This is not the case. The published case of Mr and Mrs Burns illustrates the problem. Mrs Burns (so called) lived with Mr Burns for nineteen years. They had two children but never married. They lived as a family and pooled their resources but, when the relationship broke down, Mrs Burns was entitled to nothing. She was not entitled to an interest in the family home, which was registered in Mr Burns’ sole name as she had not made a financial contribution to the purchase price of the property or to payment of the mortgage. She had, after all, been looking after the children. Because she was not married, the Court did not have jurisdiction to consider what she might reasonably need or expect. She had no claims for maintenance and no claims against Mr Burns’ pension.
Cohabiting couples can be extremely vulnerable because there is a widely held misconception that they have “common law” rights. This is compounded by the fact that the law which does exist is unclear, uncertain and inadequate. Many people cohabit without realising the legal implications. Many people purchase property without considering how to protect their contributions towards the purchase price or how to ensure that an interest in property does arise in the event of separation. As the law stands, arguments about whether a cohabitant has an interest in property are expensive and protracted. In the absence of direct financial contributions to the purchase price, it is very difficult to secure a remedy and the only safe way forward is for cohabitants to ensure that both names are on the title deeds to any property and that the position on contributions is documented. The House of Lords in Stack and Dowden decided that the general rule would be to follow the legal ownership of the home. Unless the parties specified otherwise, where an unmarried couple bought their home in joint names, the Court would start from the presumption that they owned it in equal shares.
Those couples who wish to ensure unequal ownership are advised to raise this with the conveyancing solicitor and to enter in to a Declaration of Trust. This is a clear statement of the cohabitant’s intentions with regard to the ownership of property. It may be accompanied by a Cohabitation Agreement which could cover responsibility for and contributions towards mortgage repayments and utilities, how a joint account shall operate, payments for renovation and structural repairs, as well as what will happen to the property in the event that the relationship breaks down.