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Same Sex – Thinking of living together?

Posted Sunday 28th February 2010by Editor

This is the first in a series of articles about the legal and financial implications of being in a relationship.

If you are thinking of setting up home with someone, there are a number of legal issues of which you should be aware.

Firstly, as with straight couples, there is no such thing as a common law spouse or partner. You do not acquire financial rights or responsibilities simply by virtue of living with someone. Cohabitants cannot bring claims against each other for financial support, unless it relates to an interest in property or children.

Renting a home

If you will be renting your home, will the tenancy agreement be in one person’s name or in joint names? Without a tenancy agreement in your name, you have no intrinsic right to occupy a property, so if you are considering moving into a property rented by your partner, you need to be aware that you are unlikely to have the security of being able to remain there if you are asked to leave. Where the tenancy is in both names, the position is more secure. In some instances it is possible to succeed to a tenancy if the named tenant dies, but this is a complex area.

Buying a home

You need to decide how much each of you will contribute to the purchase price, and if the amounts are unequal whether that will affect the size of the respective shares in the property. For example, if one of you contributes £10k and one £20k to the deposit, will you own it 1/3 to 2/3? How much will you both pay towards the mortgage and will that affect your respective shares?

There are two ways of owning joint property. As joint tenants, where if one of the owners dies the other automatically becomes sole owner. Or as tenants in common where you can specify the size of the share in the property you own, and you can each leave your share by your will as you see fit. (The terminology is confusing – joint tenancy / tenancy in common does not actually refer to tenancies in the rental sense, but rather to the beneficial ownership of the property).

Cohabitation agreements

These are a very good idea, and can cover how finances will be dealt with during the time you live together, as well as what will happen if you separate. They can take a lot of the strife out of separation and avoid a costly court case. As with pre-nups, cohabitation agreements have a slightly odd status in law. The are not enforceable as of right (unlike commercial contracts) but, they will be upheld so long as the agreement is drafted as a deed, there is no duress or undue pressure applied to one party to sign up to the agreement, and both parties provide full disclosure of their financial circumstances. A solicitor will be able to assist with the drafting, and advise on the sort of clauses to include or avoid.

Separation

On separation, each party will only be entitled to property and possessions in their own name. It can be very harsh on someone who has lived in a house owned by the other cohabitee, which they considered home, to discover they have no legal interest in the property at all. The non-owner may be able to argue for an equitable interest in the property, but it is a path fraught with difficulty.

There are no maintenance claims which can be brought on separation where the couple have no children.

Although the Law Commission has made recommendation for changing the law for same-sex and opposite-sex cohabitants, there is no sign of the Government preparing draft legislation to improve the situation anytime soon. So the best protection for potential and existing cohabitants is to draw up a cohabitation agreement, with the aid of a solicitor, which will cover what will happen during the relationship and if it ends, and goes some way to avoiding uncertainty (and legal costs) if you do split up.

By Meredith Thompson, Senior Solicitor, Mills & Reeve LLP

To contact Meredith Thompson, please telephone: 0121 456 8382, or email: meredith.thompson@mills-reeve.com. www.mills-reeve.com, www.divorce.co.uk

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