Cohabitation – who gets the property?

11th February 2021

Cohabiting couples often assume that moving in together as a couple creates similar rights and responsibilities as marriage; a common law marriage. This is a myth. If you are moving in together, you should know how cohabiting affects your legal position and how you can protect yourselves should your relationship end or one of you dies.

Common Law marriage – the reality 

The concept of common law marriage has no legal validity in England and Wales. Moving in together does not give you automatic rights. If your partner dies, cohabitation does not automatically entitle you to inherit. Failure to address what happens in this scenario at the outset can create disastrous consequences in the future. The situation can be even more complex if you have children together. It is extremely important to enter into a will at the same time as buying the property to avoid these issues.

Moving in together – cohabitation rights

Cohabitation does not automatically give you rights to the home you share or an interest in other assets owned solely by your partner (for example, their pension). For example, only the property’s legal owner is entitled to live there; anyone else can be asked to leave and has no say in such decisions as selling the property. If only one of you owns the property, then the other will only have rights if they agree to this or in certain situations which are often difficult to prove. Owning a property in joint names does create some protection but there are still many issues that need to be addressed, such as:

  • You cannot force other owner to sell the property if you decide to leave, unless you apply to the court
  • Even if you contributed most of the deposit to buy the property, you may only be entitled to a half share unless you agree otherwise in writing
  • If you partner leaves, you could find yourself solely responsible for the mortgage payments.

It is extremely important to consider carefully how you will own the property when buying together.

There are two options if you are purchasing together; joint tenants or tenants in common. Which option you choose will have an impact on what happens to the property if one of you dies.

It is also a very important consideration, depending on the contributions you each make to the purchase. Failure to make it clear that the contributions were unequal can have costly consequences in later years if you separate. Proving that you should have an unequal interest in the property, or rebutting the presumption that you should share equally in the sale proceeds, despite having paid a greater share of the purchase price than your partner, can involve expensive and emotionally draining legal proceedings without the certainty of a positive outcome. This is especially relevant if you own the property as joint tenants, the presumption being that the intention is to share the sale proceeds equally if you separate, despite unequal contributions.

You should discuss with your solicitor which method of ownership is appropriate in your circumstances before you complete on your purchase.

Cohabitation agreement

Whatever your circumstances, a well drafted professional cohabitation agreement, detailing the contributions made by both parties and what should happen to the property when you separate, can considerably reduce the risk of a costly dispute in the future.  Such an agreement can cover any issues involving your cohabitation. That includes the ownership of the property, how the bills are to be shared and what rights you each have to live there. It can even cover the childcare arrangements.

Whatever you decide to do, getting some initial advice at an early stage is incredibly cost effective, especially considering that a failure to do so may cause unintended consequences for you and your partner. Knowing your rights and what could happen in the future is the best way of protecting yourself and your partner.

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