Frequently Asked Questions

Cohabitation Agreements FAQ

You could consider entering into a  Cohabitation Agreement. Cohabitants do not have any automatic rights to their partner’s assets on separation however this document will set things out clearly and avoid your partner trying to argue that they have acquired an interest in your property upon separation.

Buying a house if often the biggest purchase you will ever make and it is sensible to obtain specialist legal advice as to your options from a Cohabitation Specialist. There are different ways of owning a property jointly and this should be considered carefully. You may wish to consider entering into a Declaration of Trust (as discussed below) or Cohabitation Agreement, especially if you are contributing different amounts to the purchase price.

Both can be legally binding documents provided they are drafted properly. Often at purchase your conveyancer might advise that you enter into a simple declaration of trust which may show different percentages for ownership or ringfencing an initial deposit. A Cohabitation Agreement can include a declaration of trust in similar or more complex terms and also other provisions such as what would happen if one party contributes towards the improvement or repairs, who will pay for what and what will happen upon separation. Other issues to be considered include joint debts, personal possessions, cars and even arrangements about children. This is not an exhaustive list and the document is very much tailored to the couple’s needs and circumstances and can be reviewed or amended with the consent of both parties. 

The agreement is a written document that sets out the parties’ intentions and states that they wish to be bound by its terms. It is designed to make parties think about their financial positions and their wishes before any dispute arises.

A Cohabitation Agreement can also be entered into after you have purchased a property or moved in together provided you are both in agreement.

Potentially. It is important to remember that cohabitants are not tenants and you cannot easily disregard financial contributions as “rent”. Everyone’s recollection or understanding of what was agreed is different once you are no longer a happy couple. If the Property is registered in your name then legally it is yours. However, your ex-partner can look to bring a claim for an interest in the property based on principles of resulting trust, common intention constructive trust or proprietary estoppel. These are complex legal arguments but they are centred around the discussions and understanding the parties had at the time of purchase and during cohabitation alongside the contributions made by each party. The onus would be on the non-owning partner to build their legal case and this can be costly. The safest thing to do would be to enter into a Cohabitation Agreement to set out expectations clearly.

We do not offer fixed fees because we feel that every agreement is different. You are only charged for the time we have spent on your matter. On average an agreement can take between 3-4 hours of our time. From the point we take your initial instructions we can get the agreements drafted and signed within 4 weeks.

Pre-nuptial agreements are drafted in preparation of marriage. Cohabitation Agreements are for Cohabitants who do not intend to get married but who wish to set out arrangements for their finances in the event of separation.  A Cohabitation Agreement is void upon marriage and as such if you decide to get married and already have a Cohabitation Agreement in place then you can either put it aside or, if you want to keep the same arrangements you can have a Pre-Nuptial agreement drafted to replace it.  

Separation FAQ

If you have a Cohabitation Agreement in place, then it should be fairly straight forward as to what you should do and what should happen.  If possible, the simplest way of dealing with a jointly owned property is to either sell it  or proceed with a transfer into one party’s name.

If you cannot agree then you should seek specialist advice from a cohabitation expert. At Roskilly & Mills we are happy to discuss your options with a free initial conversation.  We can guide you through the process and we work collaboratively with a number of professionals such as separation coaches, financial advisors, estate agents and conveyancers. We would always encourage parties to try and discuss matters directly if they feel they are able to however, we would recommend that you seek the advice first before agreeing to anything. If you are able to reach an agreement this can be recorded in a legal binding document such as a Separation Agreement.

A Separation Agreement or Settlement Agreement is a legal binding document which sets out the terms of your separation. This could include what happens to any jointly owned property or other assets. We would recommend to include timescales which gives all parties clarity and peace of mind to know when everything can be resolved. The agreement sets out the terms which are in full and final settlement and will stop future claims. Often there might be a delay in a sale or transfer due to financial reasons and anything could happen in that interim period. It is therefore important to draft a separation agreement to provide comfort to parties to know that what they agreed will be followed. Equally if one party changes their mind and breaches the agreement, the other party can apply to court to enforce the agreement. This can be a lot quicker than starting from the beginning of a dispute

If the property is registered in your sole name then you can change the locks. However if the Property is registered in joint names then you cannot. The joint owner who has left still has a right to enter their property however we would suggest that both parties take a sensible approach and respect the occupying party’s privacy by giving notice should they wish to attend. This situation is not easy for parties and the best course of action is to consider a permanent solution for their jointly owned property such as a sale or a transfer.

We would always recommend that parties try to resolve matters through negotiation or mediation. However if you have exhausted all avenues then one co-owner is able to apply to court under the Trusts of Land and Appointment of Trustees Act 1996 for an order for sale. There are a number of factors that the court will look at when making this decision, this could include the welfare of any minor living in the property. However, provided the court are satisfied that parties could rehouse themselves there is a good chance the Order will be made. The court will try and find a resolution for the parties and will not keep people owning property together once they have separated unless there is a very good reason and no other alternative. It is therefore important for all parties to try to find a resolution or face significant costs by issuing court proceedings.

Proceedings under Trusts of Land and Appointment of Trustees Act 1996 can be very expensive and if you get all the way to a trial you could incur costs ranging between £60,000-£100,000. Because  cohabitants are governed by Civil Rules, (CPR) there are cost consequences if you “lose” your case. You could face not only paying your own costs but also a proportion of your opponent’s costs. It is for this reason that we do everything we can to avoid court proceedings. Even if you have to issue an application it is likely that we will try settle before trial. At Roskilly & Mills we will provide clear cost estimates from the beginning and keep you updated throughout the process.

We will advise you as to whether you have any possibility of bringing a claim under Trusts of Land and Appointment of Trustees Act 1996 (“Tolata”) for your own interest in the property. The starting point is that if the property is not in your name then you have no legal interest. There are no automatic rights for cohabitants regardless of whether you have children or not.

We would look to advise you as to whether you have an option to bring a claim for an interest in the property based on principles of resulting trust, common intention constructive trust or proprietary estoppel. These are complex legal arguments but they are centred around the discussions and understanding the parties’ intentions at the time of purchase and during cohabitation alongside the contributions made by each party. The onus would be on you to build your  legal case and this can be costly.

Another option to consider is bringing an application under Schedule 1 of Children Act 1989. This would be an application on behalf of the child for financial provision. The court have powers to order a lump sum payment, periodical payments (maintenance for the child/ren) or a property adjustment order. Orders under the Children Act are usually temporary until the child reaches a certain age. At Roskilly & Mills we are very experienced in dealing with these claims as they often run alongside a Tolata claim. The court will consider a number of factors when making their decision however the parties’ financial circumstances and the housing needs of the children are paramount.

The Common Law wife/husband is a myth. Currently in this country there are no automatic rights for cohabitants or unmarried couples. The truth is that this term “common law” means absolutely nothing in today’s world. As the law stands no matter how long you have been together, you will not have the same rights as a married couple. An unmarried partner will have no right to maintenance, assets held in sole names or their partner’s pension. You will have to rely on civil law to try and gain some sort of interest under the Trust of Land and Appointment of Trustees Act ( “Tolata”).Furthermore there is no automatic inheritance should your partner pass away before you, unless they have made a Will.

At Roskilly & Mills we recognise that this will often put one party in a very difficult position and as such as cohabitation specialists we are able to advise you as to your options.

This is a question which legal professions have asked for many years. We can only work with the law that we have. Parliament are currently considering the Cohabitation Rights Bill however it is currently not being prioritised. The Bill seeks to give cohabitants some of the same rights as married couples. This uncertainty can be unsettling, especially if you have entered into or are considering entering into a Cohabitation Agreement. We are now able to “opt out” of this bill in anticipation of it being passed as law. This would mean that your agreement would stand regardless of what Parliament do in the future

Mediation is a process where a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. There is a difference between “family mediation” and Civil mediation”. Family mediation often involved several sessions over a number of months. The parties are encouraged to get together with a third party to discuss issues. The parties do not have legal representation and if an agreement is reached this is detailed in a non-legally binding document.

Civil mediation is more expensive than Family mediation however it is encouraged for cohabitants dealing with property disputes as they are governed by the civil rules. It would take place on one full day and the respective parties often have their legal representative with them. This can take place in person or remotely. If an agreement is reached then a legally binding document is drafted and signed on the day. Any form of mediation is encouraged by solicitors and the courts. It is a cost effective way of settling a dispute.

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