What are the laws for cohabitees?

Couples are ‘cohabiting’ if they live together and own a home jointly but are not married. If you and your partner have separated and are no longer cohabiting, we’ve explained all you need to know about the laws and your rights.

What is joint ownership?

You can jointly own property in equal shares or in unequal shares. If a couple owns the property in unequal shares, it is often because one party contributed a lot more money to the purchase price than the other. At the time of purchase your solicitor may have advised you to protect your contribution by signing a declaration of trust and registering the property as tenants in common. For example, if you contributed £50,000 and your ex-partner didn’t contribute anything at all, a declaration of trust could ensure that you would get back the first £50,000 on the sale of the property, with the rest of the proceeds divided equally.

You can apply for ‘office copies’ of your house deeds online with the Land Registry. Their electronic register records who owns a property, if it is owned jointly but in unequal shares, who the mortgage lender is and if there are any debts or notices registered against the property. 

Most couples own property jointly in equal shares. If you separate and have children and can’t reach an agreement about the property, the law says that a Judge must take into account the welfare of any children. In some circumstances (not all), this means that a Judge will agree to postpone a sale of the house until the children are no longer dependent. A Judge will also take into account the ability of both parties to re-house and the value of the house. You should not assume that just because you have children together and they live with you when you separate, that you will be able to stay living in the house.

What does ‘common law man and wife’ mean?

The term ‘common law man and wife’ does not mean anything legally. No matter the length of your relationship, you are not ‘common law man and wife' and you don’t have any special rights over a jointly owned property.

What happens if my ex won’t sell the house?

There is no quick fix if your ex-partner won’t agree to sell the house and you own it jointly. If you can’t reach an agreement, you should first consider family mediation as an alternative to the Court process and solicitors. Mediation is often quicker and cheaper than going to Court. There are some YouTube videos that illustrate what a mediation session is like.  Most mediations are still taking place via a video platform such as Zoom.

If you can’t reach an agreement and don’t want to mediate, or the other person won’t get involved in mediation, the next step would be to instruct a solicitor to write to your ex-partner. A solicitor might send an initial letter followed by a formal Part 36 offer which refers to Court proceedings being issued.

If no agreement can be reached, then an application for an order for sale can be made. Court proceedings can become expensive and will take several months.

Can I change the locks?

As you jointly own the property, even if you do change the locks there is nothing to prevent the other person from breaking into the property if there are no injunction orders, bail conditions or restraining orders in place. Your partner doesn’t lose ownership of the property when you break up and changing the locks doesn’t mean you own the house outright. If you intend to go back to the house to collect belongings, or for some other purpose after you have separated, you should give your ex-partner some warning and declare your purpose in doing so. If not, you may face allegations of harassment and if a disturbance is caused, you could be arrested for breach of the peace.

If you change the locks, there is nothing to stop your ex from turning up at the property, realising they can’t get in and changing the locks again. It is therefore sensible to have a discussion. If you break into a property you jointly own you must leave it in a safe and secure condition.

Do I have to pay the bills?

If your name is on the bill, you have a contractual obligation to pay it. Utility bills are otherwise the living expenses of the person who lives in the house and therefore you should discuss removing your name from the bills or taking steps to do so with each provider.

If you have joint debts eg loans, you need to discuss how the payments will be divided with your ex-partner. For example, if a car is in your possession but the debt is in your partner’s name, you should be aware that the car may be seized if the debt isn’t paid.

Do I have to pay the mortgage?

If the mortgage is in joint names, then you have both signed a contract to pay the mortgage if the other person doesn’t ie you are jointly and severally liable. However, many lenders will come to arrangements with you financially if you explain your position and will contact the person in occupation of the property to press them for payment. You should therefore keep your lender informed.

Legally, there is a concept of ‘occupational rent’. This means that if you leave a jointly owned home for whatever reason to live elsewhere and can’t afford to pay your half of the mortgage (for example, because you are renting), you can argue through the Court that your 50% of the mortgage is equivalent to the amount of rent that the person living in the house should pay you for having sole enjoyment of the property.

If the person living in the jointly owned property pays all of the mortgage repayments, they cannot persuade a Court that they should be reimbursed the total of all of those mortgage repayments. A large proportion of a mortgage payment is interest which doesn’t affect how much is left to pay on a mortgage.

If you’re looking for advice on a cohabitation matter, our Family Law team can offer a free, confidential initial discussion. Please call 0113 201 4902 or email family.law@emsleys.co.uk.

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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