Cohabitation in farming families

Divorce or separation is always a difficult time and never more so than in farming families where assets can be held in trusts or owned by the wider family. If the separating couple are not married then the situation is even more complicated as cohabiting couples do not have the same rights to be financially supported by the other when the relationship ends.

There is no principle of common law marriage in English law. Regardless of how long they have lived together cohabitants cannot make the same legal claims as married couples. The basic position is that each party retains any assets in their sole name and there is often no way to claim income or assets from the other.

When property is jointly owned, each cohabitant is entitled to a share, but what they are entitled to depends on how the property is owned. If owned as joint tenants then neither party has a specified share; the entire property is owned by both parties. If one dies the other owns the whole property automatically. If owned as tenants in common then each party owns a defined share. If one dies the property is not automatically owned by the other but passes in accordance with a will or the intestacy rules.

On separation, it is assumed joint tenants own property equally but it is more complicated for tenants in common. A written agreement determining the share will be decisive but when there is nothing in writing consideration has to be given to the parties’ intentions at time of purchase and any direct contribution from one party which may indicate how the property is owned. Only the Court can determine what the legal shares were intended to be and there is no authority to award either cohabitant a larger share.

A more common problem for farming families is when property is vested in the sole name of one cohabitant or a farm trust. It is often difficult for a non-owning cohabitant to establish any interest whatsoever unless they can demonstrate a common intention for the property to be jointly owned. A beneficial interest in the property would need to be established either through an express declaration of trust or a constructive or resulting trust but these principles are not straightforward and resolving disputes can be costly.

For peace of mind, it is advisable for cohabiting partners to enter into a cohabitation agreement to record your intentions and safeguard your assets.

Josephine Hayes is a solicitor in the Family department at Barker Gotelee Solicitors.

This article originally appeared in the East Anglian Daily Times 27th May 2017.

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