Why Cohabitation could be jeopardising your future!


By Kayleigh James

We have an increasing number of clients approaching us regarding cohabitation law disputes, many believing that they are protected by the myth of the “common law marriage.”

A recent case highlighted the need for cohabitation law to be updated.

Joy Williams lived with her partner Norman Martin for 18 years.  Joy and Norman were not married, Norman was still married to his estranged wife Maureen Martin, whom he had separated from but never divorced.  Norman had not updated his will.

Joy and Norman purchased their property as tenants in common, meaning that their respective shares would pass to whoever they chose in their will, this is different to purchasing as joint tenants where the deceased’s share automatically goes to the surviving joint tenant.

On Norman’s death, his share of the property passed to his estranged wife which meant that Joy faced losing her home of 18 years.

Court proceedings were issued and Joy successfully argued that the court should award her Norman’s half of the house to provide her security as she has been without his financial support since his death. The judge ruled in her favour, recognising that she had lived with Norman Martin as ‘husband and wife’ for many years.

But despite the victory, the case highlighted the need to update cohabitation laws.

At present, the legal rights and entitlements of those who live together are entirely different to those who marry and there is no such thing as common law husband and wife.

If you intend to cohabit with your partner, consider entering into a Cohabitation Agreement which outlines who owns the property, how mortgage payments and other bills are to be divided and what the division should be in the event of separation.  You should also update your will to reflect your wishes, particularly if a separation does occur.

If you are purchasing your property, we will advise you on the difference between owning the property as joint tenants or as tenants in common.

If, like Joy and Norman, you are moving into a property already owned by your partner, you should again consider a Cohabitation Agreement to record your intentions, you should also consider whether you wish to update the legal title into joint names.

On some occasions, you may both intend to purchase a property jointly but perhaps your credit rating does not enable you to obtain a mortgage and so the house is registered in your partner’s sole name.  You should think about what will happen if you do separate, is there evidence that the house was intended to be a joint venture?  Will you be contributing towards the mortgage and other outgoings?  Again, this is where we would advise that you consider entering into a Cohabitation Agreement as soon as possible.

Joy commented on her case: ‘I hope my situation raises awareness for others to consider their own financial position in relation to their partner and consider whether they need to protect each other in future.’

If you do have any queries as to your legal rights or would like further advice in relation to the above, we at BWL would be happy to assist you.