A number of people to whom we speak initially have misconceptions about their legal rights in property when they are cohabiting rather than married.
Disregard entirely the law relating to marital breakdown
The following are the principle misconceptions many people hold and need to be corrected:
- There is no legal concept in English law of a common law man and wife. It does not matter how long you have lived together through thick and thin – it will not mean that you will acquire any more legal rights.
- If the house that you share is bought in one party’s name only, you will not acquire an interest in the property if you simply pay the utility bills or do some decorating or similar tasks around the house.
- If the house is bought in joint names this does not necessarily mean an equal division – it depends on how you bought the house. A key question here is are you tenants in common or joint tenants?
- If one party contributes more to the purchase of the property than the other but it goes into joint names as joint tenants then you are not entitled to claim back the money you initially invested first and then split the equity equally. This means you may lose for example your initial deposit. This often comes as a big shock to one or both of the parties.
- If there are children of the relationship, this does not necessarily mean that the primary carer gets to stay in the house.
- It is not correct that maintenance can be claimed as of right from the other party, apart from child maintenance.
- It is not correct that a partner has a claim over any other assets of the other, unless those assets are in joint names or a direct financial contribution has been made.
- It is not true that if one partner dies the other automatically inherits, unless the deceased has made a Will naming them as a beneficiary. In the absence of a Will and under the rules of intestacy the surviving partner is not recognised as one of the categories of beneficiaries (although they may be able to make a claim under inheritance laws).
- Finally, disregard entirely the law relating to marital breakdown. There is no concept that everything you have is put into the pot to be divided using the principles of fairness and need (as is the case for married couples – see Finance Provision in Divorce Cases).
Take action just in case the rot sets in
This no doubt all sounds pretty grim to those of you who are living in a property with your other half which is in their name. You may have children and be the main carer and only work part time. See When Cohabiting Couples Separate.