I am a retired solicitor (equivalent to an attorney in other countries). I practised Family Law for 26 years.
Living Together? What Are Your Property Rights?
Cohabitees are not automatically entitled to a share of their partner's property just because they are living together. It all depends on the circumstances.
This article explains precisely what rights you do have.
These are things you should know whilst you are together and everything is going well. Don't wait until your relationship is becoming a problem, when some of the points I make below might come as a big shock.
Two Types of Joint Ownership of Property by Cohabitees
When property is jointly owned by two people, they need to decide how the property is to be held in the event of their separation or one of them dying.
English Law does not recognize the concept of "Common Law Spouse." You are either married/in a civil partnership, or you are not.
There are two ways of holding a property:
- Holding as beneficial joint tenants. This means that in the event of the death of one of you, the property passes to the other person automatically without the need for a Will. This is the old Roman law called "jus accrescendi," which means that the "right of accretion" passes to the surviving person. If you own the property as "beneficial joint tenants" you own half each, and nothing that either of you have done during your relationship affects this
- Holding as tenants in common. This means that on death the property does not pass to the other person automatically; if there is a Will, it passes in accordance with the Will, and if there is no Will it passes to the person's next of kin. The Will might define whether the survivor has a right to continue to live at the property and how the property should devolve if there are children of one or both parties. If you own the property as "tenants in common" then the size of your share should have been specified. You should check. If they have not been specified, you will have to establish the size of your share, based on similar principles as described above. Where the documents are clear on this question, that will stand, unless you can show that there has been fraud or mistake.
Sometimes conveyancers or solicitors fail to specify in the purchase documentation how you are holding the property in either of these ways. In such circumstances there is a presumption that you hold the property in equal shares unless you are able to show that this is not the case, based on the sort of principles described above. It is important that you check this on the legal documents.
How Should Cohabitees Buy a Property Together?
When cohabitees buy a property together, should they hold it as joint tenants or tenants in common?
When parties are not married, it is usual for them to hold the property as tenants in common. They can still pass the property to each other by Will if they want to, but if they do not, then they can pass their individual share to someone else—for instance, if either of them has a second family, or for tax planning.
You will both need to decide which of the above alternatives you would like—joint tenants, or tenants in common—and it is essential to ensure that your choice is registered at the Land Registry by your solicitor or conveyancer. In case of later dispute, it is always best to have a written statement of the share of the purchase price which you have each contributed to the property, including legal costs. Keep this information in a safe place permanently.
When Reading About Cohabitation
Remember that eqch country has its own laws, so check the country of publication of any information relating to this subject, as it will have considerable bearing on your particular rights.
Property-Owning Cohabitees Should Sign a Cohabitation Agreement and/or Declaration of Trust
Although you may get on well now, there could be a time in the future when you wish to part company or there is a dispute about property. For this reason it is best to have a document called a Declaration of Trust or a Cohabitation Agreement, which is an agreement in writing setting out how you would deal with the property in this event.
Read More From Toughnickel
A Declaration of Trust normally states the shares in which the property is held, and sometimes the amount which each person has contributed to the purchase of the property. It may contain other things as well.
A Cohabitation Agreement would cover such things as:-
- How the mortgage would be paid
- Who pays the outgoings
- How the property will be dealt with if one person wants to leave. For instance, it might say that the person who wants to leave would have to offer their share of the property to the other person for purchase at market valuation and that there would be a time limit for the other person to raise funds, after which the property would be sold on the open market, and that both people would agree not to obstruct the sale if this happens.
Providing for these circumstances now could prevent a great deal of disagreement in the future.
Property in Your Partner's Sole Name
You are probably not entitled to property which is not in your name. If the property you live in is in your partner's sole name, you would not have an automatic right to any part of it unless you can prove that you are entitled to a share.
This might be:
- Because you have contributed to the purchase of the property. In that case, you would be entitled to a share of the value in proportion to the amount which each of you contributed;
- Or you made a direct financial contribution (this could be by paying all or part of the mortgage), or an indirect contribution, possibly by paying for all the other outgoings, thereby releasing your partner's money to pay the mortgage, In those circumstances, the Court would consider your financial arrangements throughout your relationship, and would then award you a fair share.
- Or your partner promised that you would have a share and you acted on that promise; in such a case the court might transfer the property into your name, give you the right to live there (sometimes just for a specified period of time) or award you a fair share of the proceeds of sale or value of the property.
Your chances of success rely on the strength of the evidence you can produce, so clearly it is important to retain evidence of payments made, or evidence of any agreement made (preferably in writing, signed and dated).
It can be very difficult, expensive and time-consuming to establish that you have a right to a share in property which is not in your name, so it is best to have a written agreement on which you can both rely in the future.
If Cohabitees Have Children Together
The parent who is the children's main carer can make financial claims in respect of the children from the other parent (under Schedule 1 Children Act 1989). It would be very rare for a father to be required by a court to pay for children by a different father, unless he has assumed full responsibility for them.
Whichever partner is the main carer might be permitted to continue to live in the property whilst the children are dependent, regardless of who owns the property. The Court can make an order for a lump sum to provide for housing or for other specific capital needs of the children, having regard to what would be in the best interests of the children. Generally capital would have to be repaid once the children are 18 or have finished their education.
Consider Making Wills
If you do not already have Wills, it would be important to make a Will concerning your share of the property. Don't assume you won't have an estate to deal with. Even if you have, for example, a 100% mortgage, on your death this mortgage might be paid off by an insurance policy and there would then be a very substantial asset in your estate.
Making a Will Could be Crucial to Protect Your Partner
Cohabitees are not well protected if there is no will.
Don't be superstitious--you're not going to go up in blue smoke just because you have made arrangements for after your death!
When One Cohabitee Dies, What Happens?
What happens depends on whether there was a will.
Unmarried partners do not have an automatic right to inherit property which is not in joint names. The Law does not recognize the concept of "Common-Law spouse" except in very limited circumstances. A cohabitee does not gain rights of ownership merely by contributing to housekeeping or even mortgage payments. This does not mean that a cohabitee will never have a right to property unless it is in joint names, but as the Law is so complicated, it is much better to provide for your partner specifically in your will to avoid anxiety and hardship.
If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner's estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner's side would be completely disinherited, so provision should be made in a will to avoid this situation.
Providing for the circumstances now can prevent a great deal of disagreement in the future.
If One Partner Dies Without Making a Will
If there is no will, this situation is called "intestacy."
The surviving partner is not entitled to any part of their deceased partner's estate unless they own the property as "beneficial joint tenants" in which case it would pass to them. (The term "beneficial joint tenant" is explained above in the section Two Types of Joint Property Ownership by Cohabitees.")
Otherwise the deceased partner's estate will go to their next-of-kin. This could be a spouse if they have never divorced, even though they no longer live together. If the deceased has a spouse or children, this could mean that the surviving partner/cohabitee would be made homeless.
If partners own a property as "beneficial tenants-in-common", the deceased partner's share will go to their next-of-kin, as above. The surviving partner might be forced to sell the property, or buy them out. (The term "beneficial tenants-in-common" is explained above in the section "Two Types of Joint Property Ownership by Cohabitees.")
If the surviving partner is left without resources of their own, they would need to make a claim against their partner's estate on the basis that they lived together for at least two years prior to the date of death or that they were wholly or partly dependent on them. Making a claim against an estate can be difficult, costly and time-consuming, and for this reason it is important that the partners make wills.
This is What a Short and Simple Will Looks Like
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The Most Important Thing to Do: Talk About the Future
Agree with each other at the beginning of your relationship on how you will deal with your property in the event of separation or death.
This is not ghoulish, it is common sense.
Put your wishes in writing—if there is a dispute, written evidence is the best evidence.
Useful Video on Cohabitation
Here's a BBC interview about the law relating to marriage versus cohabitation in the UK.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.