Recent media stories have again brought to attention the issues people may face when cohabiting. 

Sole ownership case 

If you reside at a property solely owned by your partner and your relationship has now ended, you are likely to be in a very vulnerable position. 

You will not have gained an interest in the property solely as a result of being in a relationship, due to the passage of time, or contributions to household expenses, even if this includes contributions towards the mortgage repayments. 

Establishing an interest 

It is possible to try to establish an interest, but this can often prove extremely difficult and costly. 

If the other party is not in agreement, then you will be forced to make an application to court to try and establish an interest in the property. The requirements to establish an interest are complex: 

• There must be a common intention between you and the other party that you should have an interest in the property; either written or implied. 
• In reliance upon this common intention, you must have acted to your detriment. 

Written agreement 

The easiest way to demonstrate a common intention would be via a written agreement signed by both parties, or failing this, some other form of written document confirming that both parties intend for the property to be shared in some way, ideally stating in what shares.  

Common intention constructive trust 

In the absence of anything in writing, a claimant can look to potentially rely on a verbal agreement or alternatively the parties’ conduct and look at how this has implied that both parties should share ownership of the property. This is obviously much more difficult to prove and is a much riskier prospect when considering litigation. 

A key distinction is that it is perfectly possible for someone to promise to house somebody or provide them with, or share, a home while they are in a relationship, but this is entirely different to promising that someone will have an interest in a property should the relationship end. 

Detrimental reliance 

If a party is able to demonstrate a common intention, then they must show they have relied upon this to their detriment, which itself must be substantial. This would normally involve some sort of financial decision they have made that would not have been made had they not believed they had an interest in the property, such as investing a significant lump sum of capital upon renovations. It is not enough for a party to have helped maintain the property, looked after the children, or contributed towards the monthly outgoings during the relationship.  

The detriment suffered must be substantial and above and beyond what they would expect to incur in normal day to day expenditure. After all, wherever they were living they would have monthly household expenses; be they rent or mortgage and utilities, and would also need to care for any children they may have. The detriment must therefore involve a contribution over and above these. 

Quantum 

If all of these elements are successfully established, then the court can move on to look at quantum and establishing what shares the parties should have in the property using a broad-brush approach. 

Options 

There are limited options available to parties in this situation once the relationship breaks down. 

We can attempt to negotiate with the other party to demonstrate that you do have an interest in the property. As an alternative the parties can look to attend mediation.  

Court proceedings in situations such as these are a backwards looking exercise and are based upon trying to establish the parties’ prior intentions, rather than providing for the parties in the future. They do not have much regard to fairness in the same way that matrimonial proceedings may do. 

Until such time as legislation is introduced to try and protect cohabitees in such situations, if ever, or people become more aware of the vulnerable position they may be in and as a result look to protect their position, these cases will continue to be a very regular occurrence. 

If you need advice on any of the issues mentioned, please don’t hesitate to get in touch with our team of experts, who will be happy to help.