Cohabitation

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Living together does not entitle one an interest in the shared home. When a cohabitation relationship comes to an end there is no power for the court to to make orders in relation to property as there would be if the parties had been married or in a civil partnership. Cohabitants rely on land and trust law to determine a dispute as to the ownership of a property.

Couples (or others) who are unmarried who purchase a property together and intend to share the occupation should be aware of the differences between beneficial joint tenancies and tenancies in common. They should also assess the advantages and disadvantages of holding the beneficial title as joint tenants or holding as tenants in common. The decision should be recorded as to how the beneficial interests are to be held. A clear declaration of the cohabitant’s intentions in regard to ownership of the property should be recorded at the time of acquisition otherwise there may have to be a reliance on the courts determination in the event of a later dispute.

Beneficial joint tenancy means the property belongs to you and the other owner or owners jointly. You must all act together as a single owner. You do not own specific shares in the property and you cannot give away a share of the property in a will. If you die, your interest in the property passes automatically to the other owner or owners.

Tenancy in common means the property belongs to you jointly but you also own a specific share of its value. You can give this away, sell or mortgage your share. If you die, your share of the property passes to the beneficiary in your will.

Cohabitation agreements (even if valid) do not have any specific applicable legislation and so they have to rely on the law of contract for enforcement.

If the father of a child who is not married to the mother of the child wishes to be named as the father on the birth certificate and if there is no joint request for the name to be registered, the father may apply for registration himself (re-register the birth). A child’s mother may if she wishes name a man as the father of the child if there is no joint request for registration. If a man’s name is recorded in the register of births as the father of the child this is evidence of paternity and therefore the burden of proof will be on the father if he subsequently disputes it. A father who registers the child’s birth jointly with the child’s mother will automatically have parental responsibility. An unmarried father may acquire parental responsibility for his child by jointly registering the birth with the mother; marrying the child’s mother; a parental responsibility agreement; a parental responsibility order; appointed as a child’s guardian or having an adoption order made in his favour.

Applications under Schedule 1 of the Children Act 1989 can affect former cohabitants and those who never cohabited but have a child together. They are a way the courts try to ensure that children’s financial needs are met when their parents are not married. The court regarding these applications for financial relief consider a number of matters before deciding if an order should or should not be made in favour of the applicant including the income, earning capacity, property and other financial resources of the parties; the financial needs, obligations and responsibilities of each person; the financial needs of the child; the income, earning capacity, property and other financial resources of the child; any physical or mental disability of the child and the manner in which the child was being, or was expected to be, educated or trained.

Under the provisions in Schedule 1, for the benefit of the children a property can be settled during the minority or until completion of full-time tertiary education of the children.

These Schedule 1 applications are slowly becoming more common in the courts and the procedure has many similarities and many striking differences to financial remedy proceedings that divorcing couples may face.