Cohabitation myths atkins thomson family lawyer clarifies
26th July 2011
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“I am a common law wife/husband.” – Not true. This is the most common myth of them all.  There is no such thing as a common law spouse in current family law.  Just because a couple live together, does not give either of them any of the rights and claims they would have if they were married or in a civil partnership.   But there are many ways to record and protect the rights of cohabiting parties and getting clear advice on your situation can save a lot of heartache in the long run.

“We have lived together for X so many years so I have a financial claim against my partner’s house.”  Not true. The law treats couples who are married very differently to those who are not.  There is no ‘magic’ number of cohabiting years when a person can claim a financial interest against  their cohabite, whether it has been 3 years or 50 years.  It may be possible to make a claim if a financial contribution has been made under complex laws of equity and trusts but it is by no means automatic.   The best way is to own any property is in joint names or to record any agreement you have reached in a properly prepared “Living Together Agreement”.

“We have children so I have a financial claim against my partner’s house.”  Not true. A father has a duty to provide maintenance for his children and it is of course imperative that children have a roof over their head.  However, if a couple with children split up, it is not the case that the non-owner who is caring for the children would have a financial claim in the partner’s house or assets.  It is possible for a claim to be made for the children but even if a home was provided for them while they were minors and in which the non-owner would live with them, normally this  would revert to the owner when the children have grown up. 

“We live together so I am his/her next of kin.”  Not true. Next of kin has no real legal meaning. In practice, hospitals, insurance companies and other agencies and institutions  generally only recognise spouses and close blood relatives as next of kin, but not cohabitees.  

“My partner cannot force me to leave his/her home if we split up.”  Not true.  As a cohabitee, if you do not jointly own the property you have no right of occupation and therefore no right to remain there.   Further if the home is rented but you are not joint tenants, you have no right to remain.  It is sometimes possible to get short-term rights to stay by applying to the Court. 

“My partner cannot force me to sell our home if we split up.”  Not true.  The reason for buying the home was as a home for both parties and if that is no longer the case, the house should be sold.  That alternative is for one party to ‘buy out’ the other’s interest and obtain their release from any joint mortgage liabilities. 

“I pay 50% of the joint mortgage and so I am not liable for my partner’s share.”  Not true. A mortgage is a ‘joint and several’ liability.  This means that both parties are liable to pay all of the mortgage.  The lender is not concerned who pays what as long as it is paid.  If one party pays 99%, they can still go after that person for the other 1% and vice versa.  The same is true for Council Tax, both parties are responsible, regardless or whether one contributes or not.   

“It’s not fair, I have left our home and have no benefit whilst my partner is still living there.”  Not true. It is possible to seek “occupation rent” from the person who is still in the home.  Often instead, it is agreed that the person who remains pays all of the mortgage repayments. 

“I paid the deposit on the joint home I share with my partner so I will automatically get that money back first if we sell it.”   Not true. If you own as “tenants in common”, unless you have further documentation, it will be deemed that you own a half share, regardless of contributions.  If you have paid unequal contributions or agree that one party should have a greater interest than the other, then you should have a Declaration of Trust drawn up, which clearly states the percentage each of you has in the property. 

“I paid for a conservatory on our home, so I will automatically get that money back first if we sell it.”  Not true. The same applies as above.  However, if a joint tenancy is severed before such expenditure, the Court has discretion to take such matters into account, this is called ‘equitable accounting’.  This is however, by no means automatic. 

“I am having to sell my belongings to pay for my partner’s debts.”  Not true. You do not have to do this.  You are not liable for your partner’s or ex-partner’s debts as long as they are in their sole name and you are not a guarantor. 

 “I have told my partner s/he can have my assets if I die before her/him.”  Not true. If a person dies without a valid Will, their estate is divided according to the ‘intestacy rules’.   This means that a distant relative could inherit the person’s house and all their estate even if someone has lived with their partner for years.  It is vital to have a valid Will.  The survivor will also not be able to access money held in the other’s sole bank accounts.  

“My partner has died and left me their estate, but I do not have to pay inheritance tax.”  Not true. You are not exempt from paying inheritance tax unless you are married to the other party or in a civil partnership.

“My partner who was the sole tenant in the rented home where we live has died but I can just continue to live there.”  Not necessarily true. This is not automatic but often is possible. 

“I have made a Will leaving my share of the home I own with my mother/sister/etc to my partner.”  On it’s own, this gift may not be valid.  If you own a property jointly you could own as either ‘joint tenants’ or ‘tenants in common’. If you are joint tenants this means that if one of you dies, the other owner automatically inherits the whole of the property. This is irrespective of any provision that you make in a Will.  So, if you want someone other than the joint owner to inherit your share, you must either purchase as tenants in common or ‘sever  the joint tenancy’.  It is a straightforward procedure to ‘sever’ a joint tenancy.   It is of course also important to ensure you have a valid Will after severance.

 “I am the father of my partner’s children so I have parental rights.”  Not necessarily true.  If you are not married to the mother and are not named on the birth certificate you have no automatic rights.  Even if you are named on the birth certificate, you do not have automatic rights if your child or children were born before  December 2003.  This means you do not even have the right to authorise medical treatment.   You can obtain parental responsibility and we can advise you how to do this. 

“I have loads of debt so I don’t have to pay maintenance for my children to my ex-partner.”  Not true. The Child Support Agency deal with child maintenance and base payments on net income and the only allowable deductions are tax, national insurance contributions and pension payments.  If you have other children living with you, or the children who you pay for stay with you overnight on average one night a week or more this may be taken into account.  We can calculate the amount you should be paying. 

“My partner cannot be convicted of rape or assault because we live together.”  Not true. A man can be convicted of rape, regardless of whether she is a partner or wife.  We can assist in obtaining orders to protect you and also the police will of course assist.     

“My partner has assaulted me so I have to leave my home.”  Not true. Even if you do not own the home, it is possible to seek an order that the abuser leaves, even if he is the sole owner.  We can assist in this regard as can the police. 

On all of these issues we can help you by clarifying where you currently stand and what options you have for changing, improving, or securing your position.  For more information please contact:

Michelle Ellis                                                             Louise Cardwell                    

01284-731924                                                           01284-731922


This information is intended for general guidance only and should not be relied upon without detailed legal advice on your specific circumstances, which we will be pleased to provide.

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Miriam W

Member since: 10th July 2012

hello there, I am the owner of the Best of Bury St Edmunds and my aim is to keep all local people informed about the better businesses in our lovely town and make sure the businesses on this directory...

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