11 February 2016
Caution in Cohabiting – Four Things to Think About Before You Move in
A 69-year-old lady who lived with her partner of 18 years may lose her home because he died without divorcing his wife or re-writing his will.
Upon marriage breakdown, it may seem easier to just simply physically separate. However, this case highlights the pitfalls of not divorcing and obtaining a court order which dictates how the assets of the marriage are to be shared. It also shows how cohabiting couples can be unaware of their legal position and what would happen after their partner’s death.
If Norman Martin, a dentist from Dorchester, had divorced his wife and had a court order which set out what was to become of the property and had an up-to-date will then his partner Joy Williams’ story would have never made the news.
Now the property where they lived together has passed to the estranged wife. This highlights the pitfalls of not divorcing and not obtaining a court order on divorce and why it’s important to review your will when your circumstances change.
Four things to think about before cohabiting with your partner:
- There is no such thing as ‘common law wife’ or ‘common law husband’ - the legal rights and entitlements of those who just cohabit are entirely different to those who marry.
The legal position is also different for those who live together but have children together. In those cases, it may be possible to bring an application for the benefit of the child or children.
- If you are purchasing a property with a partner you need to give some thought to how you want to own the property - there are two different ways to own property together: ‘joint tenants’ and ‘tenants in common’.
If you own property as ‘joint tenants’, upon death, the property will automatically pass to the surviving co-owner.
- If you are moving into a property already owned by your partner or owned by your partner and another (like with Norman Martin and Joy Williams) then consider what will happen upon relationship breakdown - discuss whether the way in which the legal title is held needs changing.
If you simply live in a property owned by your partner and make no financial contributions then it is likely to be extremely difficult to establish any legal interest in that property.
- If you are moving into a property not owned by you and you start to invest funds into the property think about your legal position on relationship breakdown – this could be by making mortgage repayments or by funding renovations.
In this case, the burden is likely to be on you to try and establish an interest in the property and this can be difficult.
My top tips would be to prepare a will and to consider having a cohabitation agreement drawn up. A cohabitation agreement should set out who is paying what for the house and how you intend the property to be divided upon relationship breakdown.
Katie Lowe is a family lawyer at Slater and Gordon in Manchester and Preston.
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