News and Insights
23 July 2017
A question I‘m often asked is whether there is such a thing as a common law marriage in Jersey? The short answer is no. You’re either married, or in a civil partnership, or you’re not.
The public’s use of the phrase “common law marriage” often leads to confusion about what legal protection is afforded to unmarried, cohabiting couples. This can, in turn, lead to significant difficulties for those involved.
Cohabiting couples are on the rise. Anyone who has been at the Royal court in Jersey on a Friday afternoon can see an increasing number of unmarried couples buying property together. So this is an issue that will affect more and more people.
What rights do cohabiting couples have?
Unfortunately, not a lot. There are no specific statutes that protect cohabitees in the same way as married couples. This leaves it largely open to agreements being made between the parties or the strict legal ownership of assets which dictates a cohabitee’s rights.
The best way to try to explain this situation is to say that the law views a cohabiting couple in the same way as if they were sharing a house or some property with a friend. Of course, rarely would people buy a house or property with a friend and put it solely into the other person’s name without some sort of agreement that recognised each person’s interest in the property. For many cohabiting couples this is essentially what they’re doing.
Unlike in England and Wales, Jersey does not have a system of equity which runs alongside the legal ownership of a property. Essentially the party whose name is on the title deeds will be deemed to be the owner of the property.
There are lots of reasons that only one person may be the legal owners of a property in Jersey – for example only one person may have their housing qualifications. For couples who have purchased a property in only one of their names, it is most likely they would want to enter into an equity agreement which sets out the rights of each in respect of the property. It may set out what each has contributed to the deposit (and in what proportions) and/or it may set out who is contributing what to the mortgage repayments.
The primary purpose of the equity agreement is to set out firstly how the property is to be sold if the cohabiting couple break up and secondly how the proceeds of sale will be divided when the property is sold.
The other option is to enter into a cohabitation agreement which is a more in depth document and which will cover how the equity in the property would be divided as well as any other matters of importance that should be considered in the event of a break up.
Are cohabitation agreements enforceable?
It’s important to remember that the court has the ultimate discretion to decide whether these agreements are enforceable and how. The way to give these agreements the best chance of being enforceable is to stick to them.
If the agreement says the mortgage payments are to be made equally then it is up to both of you to make sure they are. If there are children, there is limited recourse for financial assistance by way of the Children Law. But, the financial remedies the court can order will only be for the benefit of the child. It can’t be used as a way of receiving payments for the benefit of the ex-partner by the back door. A cohabitation agreement could be used to cover payments in respect of the children which may cut down on expensive litigation further down the line.
What happens if one partner dies?
Non-married couples may also encounter problems in the event one of them dies. It is best that a will is drawn up by both parties detailing how their property is to be dealt with in the event of their death.
If there is no will then the deceased’s partner will have no interest in any of that property.
So what’s changing?
Unfortunately, not much in Jersey. In the UK a Cohabitation Bill of Rights has been proposed but it doesn’t seem to be making much headway. Which means that the statutory rights of cohabiting couples will continue to be limited.
Things to consider:
- How a property is to be held,
- Whether you need a cohabitation or equity agreement; and
- The need to make a will.
Each of these documents should reflect each other to ensure they have the best chance of being enforceable.
If this is something which you feel affects you or someone you know, I would be happy to give you further advice on any of these issues. Please do get in touch.