Cohabiting couples are the fastest growing family type in the UK with more than 3.3 million cohabiting families, more than twice the amount there were 20 years ago. Despite this societal change, there remains a significant lack of awareness among cohabitants of their legal rights, or perhaps more appropriately the lack of them, when buying a property together.
Buying a home with your partner, especially a first home together, should be exciting, but in all the excitement careful thought needs to be given as to how your home should be owned, especially in case the relationship doesn’t last. On a divorce the court has extensive powers to redistribute assets taking into account all the circumstances in a case, but for unmarried cohabitants there are no such powers. In the vast majority of cases the law falls back on principles of property and trust law which are far more restrictive. There is no principle of the ‘common law spouse’.
Unless only one person is meeting all of the costs of the property, including any mortgage payments, the majority of unmarried cohabitants will either buy their home as joint tenants or tenants in common in specified shares. Joint tenants will have equal rights to the entire property and, upon death, the property automatically passes to the survivor outside of any Will. Tenants in common will own the property in specified shares and can pass their share of the property under the terms of their Will.
People buying a property together do so usually when their relationship is happy and you may think that it is perfectly fine to own it either as joint tenants or tenants in common in equal shares, but you need to think about what you would want to happen in the event your relationship doesn’t last and the property needs to be sold. If you are putting in a greater proportion of the purchase price or paying more of the mortgage, you may want the sale proceeds to be distributed according to your financial contributions. If you are paying 75% of the cost of the property then you may well think it fair that you should receive 75%of the sale proceeds if the property is sold. However, if the property has been bought as joint tenants or tenants in common in equal shares, then the presumption is that you would only receive half. It is extremely difficult to go beyond that presumption and there needs to be compelling evidence to be able to do so from a legal perspective.
Just because you may be making a greater financial contribution there may be other factors you may want to take into account, for example if you have children together or if one of you pays the mortgage and the other pays all other household expenditure.
However you arrange your family finances, you need to try to agree what you think would be fair if the relationship doesn’t last. It isn’t sensible to say that you will own your home 50/50 and hope for the best. The relationship may endure or it may be long-lived and you may feel that at the end of it that an equal division is fair, but what if it only lasts a matter of months or no more than a few years. Would you feel then that an equal division is fair if you have made different contributions?
The conversation with your partner can be a tricky one at a time when the relationship is in good shape. In simple cases it may be enough to have a ‘declaration of trust’ stating how you own your home and the percentages. In more complicated situations, for example where there are children from previous relationships, you may want to consider having a more detailed cohabitation agreement. For older people there will be other aspects to consider and any agreement may need to tie in with your inheritance planning.
If you need expert advice on divorce or family relationship issues more widely, please contact Philip in our Family & Divorce team. Alternatively, you can email firstname.lastname@example.org or call 020 7631 4141.