It is true in Jersey as in other jurisdictions that unmarried, cohabiting couples are the fastest growing type of family. More often than not couples will live together before they get married or they may choose never to marry due to cost, ease or because they don’t value the institution of marriage in the same way their parents or grandparents did. However, the law is a little bit behind in catching up with society’s current mores.
Taking that step to “move in together” can be an exciting time. However, the reality of the legal consequences that flow from a subsequent break-up is often a source of surprise. There is no such thing as a common law spouse and no statutory regime protecting people when their cohabiting relationship ends whether through separation or death.
When the relationship subsisted you and your partner may have had an understanding that you would receive back any contribution you had made to the house that they owned but you lived in as a couple, but those understandings and promises may be forgotten if the relationship sours or if you are left dealing with your deceased partner’s estate. So, what can you do?
It is possible to enter a cohabitation agreement before or once you are living together. This will ensure that:
- Everyone has a clear understanding of what their financial commitments are;
- There is no misunderstanding over who owns what;
- There are no difficulties and disagreements if the relationship ends;
- There is clear evidence of everyone’s intentions should any dispute be referred to court.
This is a sensible approach and one that can be helpful to guard against misunderstandings. However, the binding and contractual force of the document may come under attack if its terms are ignored during the course of the relationship. If there are children from the relationship and a Schedule One application arises, the weight attributed to any cohabitation agreement will likely be considered by the Court using an approach similar to that used when approaching pre-nuptial agreements
In the event the family home is jointly owned but the parties cannot agree whether or not to sell and how the proceeds of sale should be divided, then the blunt instrument that is licitation proceedings can be engaged. This is generally an unsatisfactory and costly solution as it involves making an application to court to force the sale of the property. The property is then put up for auction and may sell at an undervalue.
Before moving in together and while still in the throes of romance and excitement, it is worthwhile taking a moment to think about the future and the issues that may arise in the event of the relationship ending. It will save time and pain in the long run. The solutions are limited for cohabitees and so protection is essential. If you are considering moving in together it is worth getting some legal advice beforehand and considering a co-habitation agreement so that both of you are clear on your respective expectations.
Both Nina and Clare would be happy to help talk you through the issues.
Please call 875 875 and book yourselves in for a chat or contact us here.