Cohabit in Haste...Repent at Leisure?

From time to time, there is a case which should sound alarm bells to cohabiting couples to warn them that they can no longer rest upon their undefined laurels and that they need to consider the importance of documenting their intentions and living arrangements.

Such a case is the 2008 matter of Fowler v Baron.  Mr Baron understood that by putting down the deposit on a property, paying all the mortgage payments and receiving no contributions towards the utilities or council tax, this meant that he would be solely entitled to all the equity in the property, even though this was held in joint names.  He argued that the property was only placed into joint names so that, if he should die, it would provide a home for Miss Fowler and their two children and they had even prepared wills to reflect this expectation. 

This particular retired fireman, however, had his fingers well and truly burnt as the Court of Appeal recently ordered that Miss Fowler should have a 50% interest in the equity of the property when their relationship broke down.  The Court’s reasoning was that the placing of the property into joint names when it was bought was a conscious decision and a deliberate choice. The fact that Mr Baron only intended Miss Fowler to share in the property in the event of his death was never communicated to Miss Fowler.

This once again throws the dice in the air where cohabiting couples are concerned. Cases such as this are often described as “exceptional” but these are the sort of situations we come across on a daily basis. It is all too easy to be in a position when the first time you have thought about what share you might own in your property is when it comes to be divided after a relationship has foundered.  A Cohabitation Bill was presented to the House of Lords in December 2008.  If the Bill proceeds un-amended, then when partners have cohabited for two years or have a child, they automatically gain the same legal rights as those enjoyed by married couples.  It will be possible to opt out of the scheme when it comes into force, and your intentions to do so can be made clear in a cohabitation agreement prepared now. In today’s climate, the benefits of nailing your colours to the mast in a Cohabitation Agreement are overwhelming.  Couples living together can definitively regulate their affairs at any time before, during or at the end of their relationship by a professionally prepared, legally-enforceable Cohabitation Agreement.  It is clear that, had Mr Baron done this at the outset or at any point up to the ending of their relationship, the outcome could have been significantly different.

Carmelita Ardren is a solicitor and head of Raworths’ family law unit. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively, visit our website on www.raworths.co.uk or email Carmelita.ardren@raworths.co.uk.