Full and in-depth structure and notes on co-habitation. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on . Contains extensive but easily comprehensible detail. I...
Potential pre-liminary issues:
Pre-liminary issue – professional conduct: is one person asking for advice, or is the couple seeking
joint advice?
Para 6.2: you do not act in a conflict of interest, or if there is a possibility of a conflict of
interest unless
o The clients have a substantially common interest in relation to the matter
o The clients are competing for the same objective
AND
o Both clients have given informed consent in writing to you acting
o Safeguards have been put in place to protect confidential information
o Satisfied it is reasonable to act.
Information on co-habitation agreements:
Define…
A cohabitation agreement is an agreement based on the laws of contract which sets out parties’ rights and responsibilities
towards the property and finances, and arrangements upon breakdown of the relationship.
State…
Both parties should seek independent legal advice and disclose all their information.
Parties should also consider creating wills and signing a declaration is deed if the owning party intends for the other spouse to
have an interest. This will clarify a beneficial interest.
S53(1)(b) LPA – must be in writing and signed by the buyers. Generally conclusive evidence of ownership – Pettit v
Pettit. Declaration can either be included in the purchase deed or as a separate deed. This arrangement cannot be
later undone by the court.
Enforceability…
Sutton v Mischon – there is nothing to say that cohabitation agreements are not legally enforceable.
However, the parties should demonstrate their intention for the agreement to be legally enforceable. As they are a type of
contract, to be valid they must meet the standards of a valid and enforceable contract: Valid offer / Valid acceptance /
Consideration / Intention to create legal relations There is a presumption in contract law that in domestic situations there is
no interest to create legal relations.
However, this can be rebutted (agreement expressly says it is to be legally enforceable / sought separate legal advice made
full and frank disclosure…)
Additionally – the agreement must avoid making co-habitation an obligation (parties better to enter into agreement after the
begin living together)
APPLY – is there an intent to be bound / is there anything to rebut the presumption / is there anything indicating towards
the presumption?
Advice on co-habitation agreements – based on the fact pattern: Property:
Is there property?
How is it owned? / How do parties want to own it?
Joint tenants / tenants in common – solicitor must advise on both types of ownership.
JT – survivorship – is this appropriate on the facts for the house to go to ‘y’ if ‘x’ dies? Does ‘x’
have children to provide for, if yes – not good to own as JT.
o To establish beneficial interest in jointly owned: create a declaration of trust (line below)
o If ‘x’ dies not leaving property to ‘y’ and ‘y’ wishes to show an interest in the house – ‘y’
must establish beneficial interest. If unsuccessful, ‘y’ will have a mere bare licence
which can be revoked by trustees / PR’s.
A way to clarify beneficial interest in a jointly owned property = using a
declaration of trust.
S53(1)(b) LPA – must be in writing and signed by the buyers. Generally
conclusive evidence of ownership – Pettit v Pettit. Declaration can either be
included in the purchase deed or as a separate deed. This arrangement cannot
be later undone by the court
TiC – no survivorship – advise client to write a Will otherwise co-habitee will not inherit via
intestacy (but a child will)– is this appropriate on facts?
Or, does ‘x’ already own the property as sole owner? – in which case make sure there is a Will
to leave property to ‘y’ / children…or to keep ‘y’ from having it – don’t make any assurances
that the house is owned jointly
Other advice:
If ‘x’ does not want ‘y’ to have any interest – make sure there are no assurances made as to being JT’s / ‘y’ only makes minimal
Advice on co-habitation agreements – based on fact patterns:
Maintenance:
State the law…
Cohabitating couples have no equivalent to the Matrimonial Causes Act which regulates how finances will be divided
upon a breakdown of the relationship. Additionally, there is no law which states that upon breakdown of relationship,
the ex-partners must provide maintenance to each other.
(Are there clauses in the facts about provisions? This may not be upheld)
A spouse dies & maintenance:
If ‘x’ dies but before death was maintaining ‘y’ – ‘y’ can bring a claim under I(PFD)A
- Living with deceased for minimum 2 years and lived together as if they were spouses.
- PP’s / LS / transfer or settlement of property orders can be made by the court.
Or
‘y’ can claim provision out of ‘x’ death estate if ‘y’ lived with ‘x’ for and throughout a period of two years before death as
husband and wife – does not matter if they were finically reliant on ‘x’ or not.
Court will consider
- Age of applicant
- Duration of cohabitation
- Contributions ‘y’ made to welfare of family …
- Will only be a reasonable amount of maintenance.
On death with child – write a will.
Children:
It is irrelevant including Child maintenance clauses or provisions regarding children as this will not prevent a parent from
seeking an order under the CA and CMS which is available to unmarried parents.
Financial provision / orders for children…(see below for more info)
FLA – DV – staying in the home with or without child…
So long as the parties are or were cohabitants, ‘x’ can obtain an FLA order (NM / OO) to protect themselves and any
child living with them from further abuse, or to remove them from the home. This will only provide short-term help.
See Non-Mol and Occupation orders structure.
Parental responsibility…When parents are unmarried
At birth M has PR and F does not – CA s2(2)(a)
F can acquire PR by
registered as F on birth certificate (CA s4(1)(a))
PR agreement (CA s4(1)(b) – cannot end PR by agreement, will end when child is 18 or via court order by
another party with PR.
PR order (CA s4(1)(c) – for when F wants PR and M won’t agree – court applies welfare principle / presumption
of both parents / no order principle / no delay principle / Re H (commitment / current relationship / genuine
app)
Obtain CAO – but limits on agreement/refusal of adoption. Court again use above principles to make CAO.
Marrying M
If F has no PR M does not need F consent to anything – but F can apply for any s8 order where he has PR or not.
(s8 – prohibited steps / specific issue / CAO / contact with child if child is in care s34 CA
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