Q: If I live with someone for over 5 years, are we common law married?

No. Common law marriage in England and Wales does not exist. No matter for how long you live together, matrimonial law will not apply to you because you are not married.

Q: If we are cohabiting and we separate, am I, the non-homeowner, entitled to a share of the home?

At first instance, no: You do not have an entitlement to any equity in the home. Upon separation, the basic principle is each party keeps what solely in their name. Joint assets, such as bank accounts unless they are expressly stated to be held in unequal shares, are taken to be held on a 50/50 basis, and so the balance (or overdraft!) should be split equally between you.

Q: Wait, so I can never claim a share of my homeowning ex-partner’s house?

Maybe: If you can establish that you have a beneficial interest in the property, then you might be able to claim against your former partner.

Q: Is a beneficial interest in a property only established through an express declaration of trust?

No: An express declaration of each party’s interest in the property is the simplest way of establishing the interest, but we all know life is rarely straightforward.

You can also establish a beneficial interest in a property though a resulting or a constructive trust. This is not necessarily straightforward. You would need to look at the contribution the non-owning spouse made the property, on what basis they made the contribution and (especially for constructive trusts) whether there was a ‘common intention’ between the parties to give the non-owning spouse a beneficial interest.

If a beneficial interest is established, it may not be the case that the non-owning spouse is seen to have a 50% interest in the property. The appropriate share can vary on a number of factors.

Q: I’ve heard about this thing called a cohabitation agreement. What is it and can one help me?

A cohabitation agreement is a written agreement setting out clearly the ‘terms of the cohabitation’. It does not cover things like who does the dishes and who cleans up after the cat (those items are considered ‘trivial’ and should not be in an agreement), but rather the major considerations, such as who owns what share of the property, time limits for vacating the property upon separation etc.

The main aim is to provide peace of mind for both partners, so if you do separate, the separation does not evolve into a long, drawn-out process with arguments over who owns what equity in the property.

Q: So, I can just get one of these drafted and forget about it?

True and false: in theory, you can, but that is not recommended. As life continues, it is recommended that cohabitation agreements are reviewed at regular intervals e.g. 5 years or when there is a change in circumstance, such as the birth of children. Then length of time depends on your circumstances.

Q: Oh, it doesn’t matter, If I die, my assets will go to my co-habiting partner, won’t they?

Not automatically they won’t. Cohabitees do not automatically inherit the other’s estate upon their partner’s death. If no provision in the Will is made for the surviving partner, then the surviving partner would get nothing.

The surviving partner can potentially make a claim under Inheritance (Provision for Family and Dependants) Act 1975, but this is a claim against the deceased’s estate, which some people might not want to do.