04/01/2021 by McKenna and Co Solicitors
It’s Complicated: when unmarried couples cohabit
What are your legal rights when you own together but aren't married or in a civil partnership?
Couples who aren’t married or civil partners have no legal rights, unless one of you is economically dependent on the other, you’ve been living together in an intimate and committed relationship for five years or more (or two years if you have dependent children), and the richer one of you dies. In that case, the survivor – the economically dependent one - can apply to the courts for (but won’t necessarily get) assets from the richer partner’s estate.
Apart from that, you have to decide what your legal relationship should be in relation to your home, and establish the necessary legal framework.
The question to be asked is: do you own the home jointly?
There are two ways you can own a home: as joint tenants or tenants in common.
If you are joint tenants, when one of you dies, the other automatically inherits the whole property, as surviving co-owner.
If you are tenants in common, each of you owns a part share in your home – for example, you might have agreed to own it 50:50. When a tenant in common dies, their proportion doesn’t automatically go to the other, but is part of their
estate, to be distributed in accordance with the deceased's Will. So the surviving co-owner only gets the deceased’s share in the property if the deceased’s Will says they do – but if it says their share goes to someone else, then the survivor has to share the property with that new co-owner.
If only one of you owns the home you live in, the other has no rights in it (except, on death, as discussed above). The owner can ask the non-owner to leave at any time, and sell the property without asking the non-owner’s permission. If the owner dies, the non-owner only gets the property (or a sharein it) if the owner has left it to them in their Will, or if the exception mentioned above applies.
One way a non-owner cohabitant can prove they have rights in the home they share with the owner is to show there was an express agreement (either in writing or agreed orally) that they should have such rights. It’s much easier to prove there was an express agreement if it’s recorded in writing and signed. To make sure it’s valid, this agreement should be drafted by a solicitor and is called a co-ownership agreement.
If there is no express agreement the non-owner has to prove that an agreement should be inferred from the way they and the owner behaved towards each other, and what that agreement was. That can be extremely difficult, which could lead to contentious litigation.
The non-owner may be able to argue that they contributed some of the purchase price, shared the mortgage repayments or paid for substantive improvement to the property, as evidence of an agreement that they should have rights in the property. Then they have to argue what those rights are. It can all get very uncertain, and be expensive.
The clear lesson is that, before co-habiting, make sure you agree:
- If you are to co-own your property, whether you do so as joint tenants or tenants in common.
- If you co-own as tenants in common, what your respective shares in the property will be.
- If only one of you owns the property, what rights the other cohabitant will have in it (if any).
Generally, consider the other implications of co-habiting too, and write down what you have agreed over those too. In every case, formally record what you have agreed in writing. As you can see, it’s complicated, so legal advice is strongly recommended.
Please do not hesitate to contact our property team should you have any queries in relation to any of the above.