Rights of Cohabiting Couples to the Family Home.

20th February 2012

Land is usually the most valuable asset that an individual may own; it therefore seems natural that legislation would be passed to afford individuals in the appropriate circumstances, rights to land. A prime example of such a circumstance would be the rights of cohabitants.

Parliament has been extremely active in legislating to grant rights to couples who have married or entered into a civil union. For example married couples have been given the right under statute to occupy the family home and upon breakdown of marriage much legislation and case law exists to determine how property should be distributed.  However, no legislative measures have been taken to grant rights to cohabiting couples who have elected not to undergo the formalities of marriage or civil union.

This lack of legislation has often resulted in harsh and capricious outcomes, especially where one partner is registered as the sole owner of a property potentially leaving the other partner with no entitlement to it. With official government figures reporting that there are over 4 million cohabiting couples in England and Wales (a number which is ever increasing), arguably the need for legislation is one of great importance. However, cohabitants still have some limited means by which to assert rights to the family home.

The most obvious way that a cohabitant can secure rights to the property is by holding the property with their partner either as a joint tenancy or a tenancy in common. This would mean that both couples’ names would be entered on the title to the property. However, this is a formal process in what is otherwise more often than not an informal relationship. It should also be noted that the placing of a name on the title does not necessarily give the partner an equal entitlement to the property. In order to effectively grant a share in the property such a transfer should be made by a properly executed deed.

Although there is little relief for cohabiting couples at common law, the law of equity provides an opportunity for individuals to gain rights to the family home. The first method that it allows for is that of the creation of an express trust of the property. In order to create an express trust the partner who owns the property (the settlor) should state by written agreement that he is holding the property or part of the property on trust for his or her partner. Again this process requires a formalistic approach to acquiring rights which many cohabiting couples will deem to be unnecessary, especially when a relationship is going well. It is not until there is a breakdown between the couple that such issues arise by which point it is usually too late.

Another method for cohabiting couples to gain rights to the family home is through a constructive trust. Such a trust arises when it can be shown the below factors have been fulfilled; 1. There must be an assurance from the settlor to their partner with regard to rights in the property. 2. This assurance must be relied upon to the detriment of the partner.

An example of a case in which a man stated that he would put his cohabiting partner’s name on the land Certificate but for the fact she was too young was held to constitute sufficient assurance. The courts have also found that detriment does not need to be of a monetary consideration; cleaning and gardening have been held to satisfy this requirement. Once these requirements have been established, the courts assess on a case-by-case approach the amount of interest that the cohabitant should receive. This is calculated by the courts objectively viewing the intentions of the parties with regard to ownership of the property. In many cases the couple would almost never have made a clear agreement as to such rights.

Therefore the courts look for an inference by the cohabiting couple by way of their conduct and dealings. Where it is clear to the court that the parties’ intentions were different, but it is not possible for them to infer what that intention is, they will look to impute such an intention, which the court considers to be fair and reasonable

Where the property is owned in a partner’s sole name there is no general presumption and the court must generally look to the facts of the case in order to gain the parties’ intentions and therefore make an award.

There are other methods by which it may be shown that the parties’ respective beneficial entitlement is different to that which is suggested on paper, all of which will require careful legal analysis.

To avoid the potential arguments, couples are strongly urged to seek legal advice to record their respective entitlement and what will happen if the relationship were to unfortunately break down.

At Gepp & Sons, our family solicitors are experienced at dealing with these types of issues. If you wish to take advantage of a free initial consultation, please telephone 01245 228106 or email paynes@gepp.co.uk.