Saying “I do” – does the same law apply to those who live together?
When Shane Miller meets with clients they will often ask, does the same law apply to those who co-habit as those that marry. The simple answer is no. There is no such thing as common law husband and wife, as often is the myth. The law which cohabitees rely upon is the Trust of Land and Appointment of Trustees Act 1996, known as TOLATA.
What then happens when two parties have been living together, but each of them have contributed towards the purchase of the property in unequal shares?
When living with a partner it is fair to say that their minds will turn to how assets are technically held and their assumptions about ownership will be based on their knowledge at the time and will not be familiar with the Trusts of Land Act.
So what should happen then if parties separate and how will the Court analyse the holding of property?
There is as yet no reported authority on how the Court should handle the often undocumented and perhaps unformulated intentions of the parties in such situation as to how the property should be held and what their payment would be if they do separate.
The leading case is relation to quasi matrimonial matters is the words of Lord Walker in Stack v Dowden.
The Court however has the task of the unspoken, usually poorly documented and potentially uncrystallised thoughts of the parties into traditional legal categories. The further challenge of the Court is the age of the act and how parties evolve in relation to cohabitation and how cohabitees see the world in which we live in today. It will however come largely down to the parties to make clear what type of ownership best illustrates their understanding and how they have maintained and developed their family finances.
To determine the distribution of any property involves the laborious task of going through documentation, reviewing previous conveyancing files and lengthy statements being taken from either party. The long and short of the position is that the Court have to make an analysis upon the documentation which are prepared and undertake a forensic accounting task to ascertain what contributions were made from either party.
Currently there is no case law which clearly directs the Court on how they should apply the law to assist families who are cohabiting and then separate. The difficulty is the lack of clarity around intention which usually follows the course of the proceedings between the parties. This Shane has found faces a great number of my clients. Shane feels that it is a terrible shame that parties who face dealing with TOLATA matters predominantly encounter case law which the Courts interpret alongside the terms of the legislation.
One way in which costly litigation fees can be avoided is for parties to enter into a cohabitation agreement prior to the purchase of any property.
A cohabitation agreement sets out the intentions of the parties in relation to their intentions with regards to the property at the outset and before purchasing.
Often this can save clients an incredible amount of time, stress and money.
Shane Miller has also had extensive experience in dealing with quasi marital separations i.e. those who cohabit as husband and wife but are not married. She has extensive experience in advising on complicated matters where parties have cohabited for a substantive period of time and matters which include children. She is aware of the emotional strain that these proceedings can have upon clients and she is able to guide them through the process and procedures, providing clear concise advice.
Shane is able to deal with the bullish nature of opponents which is often portrayed within litigation proceedings and is able to calmly advise her clients through the process.
Shane’s experience in relation to these matters has included parties where they separate and include business assets, children, substantial funds and savings.
If you have any issues with regard to your relationship and you wish to discuss the sensitive issues of separation or drafting of a co-habitation agreement then please contact Shane on 01562 820575 or email firstname.lastname@example.org.
Shane was brilliant in keeping me updated at every stage without incurring unnecessary costs. It was a very difficult period for me, but she gave me complete confidence in her ability to stand up to what turned out to be a very unprofessional “other party”.