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  • Nicola

I can stay in the house can't I?

Updated: Jun 19, 2020

I am talking about couples who choose to live together. When they split up many couples still believe that they have certain rights like married couples. I get asked " What rights does my live in partner have?

The truth is no they don't and even, if they have children they have no automatic right to a share of the assets.

Let's take an example of Tom and Mary. Mary divorced her husband 30 years ago, had two young children and the house was transferred to her sole name. She met Tom, a few years later and they eventually moved in together. After 20 years, Mary's health is deteriorating fast and she has severe Alzheimer's Disease, and despite his best efforts, Tom has to accept it is now time for Mary to get expert care in a nursing home.

Tom and Mary have been happy, they did think of getting married but neither were really bothered. They never considered finances, particularly the house, both lived under assumptions that they never discussed.

So now, Mary is going in to a nursing home and money is needed for her care, what rights do you think Tom has in respect of the house? It remains in Mary's sole name.

Would it surprise you to hear that Tom has no rights in respect of the house and no automatic right to continue living there. He could issue claims for a beneficial interest or apply for a declaration of his interest. This would be complicated, costly and time consuming and Tom is so upset at Mary having to move to a nursing home he is not in a fit state himself to pursue such a claim. Mary has Alzheimer's so is unlikely to have any capacity to deal with her affairs. (Without considering whether there is an enduring power of attorney or the practicalities of applying to the Court of Protection).

Remember those children who are now grown up, many when faced with this situation see there inheritance dwindling and can be ruthless as far as a cohabitee is concerned.

So the property could be sold to pay for Mary's nursing home fees. It is a complicated area of law and much depends on evidence, and how the couple dealt with their affairs, did Tom contribute to the mortgage, improvements on the property. Were there any discussions with Mary saying the property was as much Tom's and her's. Very difficult when a great deal of this evidence would be spoken rather than in writing and based on the couple's intentions.

It is possible to protect yourself and loved ones. I suggest that you educate yourself and take some steps to avoid lengthy, contentious and distressing proceedings.

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