As a family lawyer, I am rarely involved at the start of a relationship when all is going well and people are considering moving in together. Instead, my involvement normally arises at the point the relationship is breaking down or has broken down. This has given me a lot of experience of the problems that can arise, especially around the family home.
People who are married or in a civil partnership have an automatic legal right to most assets owned by their partner, including their home. However, for parties who are not married, the law surrounding the ownership of property and assets is strict and can be brutal. The default position is that unmarried partners have no rights to each other’s property, something which often comes as a nasty surprise during a separation.
If you are living with a partner who owns the house or are planning to do so, it is really important to understand your legal position and the steps you can take to protect your future security.
Your partner owns the house, what rights do you have?
If your partner owns the house you live in, your rights may be quite limited, unless you have a cohabitation agreement in place.
The default legal position is that you will have no right to a share of the property, unless you can prove that you have ‘acquired an interest’ in the property, often by contributing to the mortgage or home improvements or by showing that there was a shared intention that you would have a share and you have relied on it to your disadvantage.
You will also normally have no right to stay in the home long-term, unless you have a tenancy agreement or ‘licence to occupy’ granted by your partner. This can make your living situation very precarious if you were to separate.
For these reasons, you should consider a cohabitation agreement when living in a property solely owned by your partner.
Are you entitled to half the house if you’re not married?
Again, if you are not married, you have no automatic legal right to your partner’s property or other assets, no matter how long you have been together. The common concept of a ‘common law marriage’ has no legal standing in England or Wales.
The only way you would be entitled to a share of the family home when one partner owns the house is if your name is on the title deeds or you can prove that you have acquired an interest in the property as discussed above.
It is essential to get specialist advice as soon as possible when living with a partner who owns the house to ensure you are clear on your rights and what steps you can take to protect your position.
What are your rights to the property if you separate?
As covered above, your rights are likely to be very limited. However, depending on the situation, things are not necessarily hopeless.
Firstly, your partner can not necessarily immediately “kick you out” just because they are the sole owner of the property. You may have a right to stay in the property in the short term, so you should seek expert advice on this straightaway if this is a concern.
It may also be possible for you to claim a share of the value of the property even though your name is not on the title. To claim an interest in a property, you would need to show that there was a common understanding with the owner that you should have a financial interest in the property e.g. by:
- Contributing towards the mortgage
- Paying for some work or improvements
- Doing some work or improvements to the property
- Evidence of agreements about ownership which have been relied upon to a disadvantage
This may not always be easy to show, but there is a large volume of cases where this has been successfully proved.
What are your rights to the property if you marry your partner?
Once you marry, the situation changes. The family court can transfer or redistribute assets between spouses as they consider fair and reasonable in the circumstances of your case.
Therefore, if you intend to marry, the ownership on the legal title will not be conclusive if you later divorce. Instead, if you plan to marry but want to specify that you want distinct shares of a property in the event of your separation, you will need a prenuptial agreement.
Adding your name to the property ownership
At some point when living together, you may agree with your partner that your name be added to ownership of the property, so you and your partner share the ownership. If your name is not on the mortgage and you are not married, this can be the best option to establish a financial and legal interest in the property. This is done through a process called ‘transfer of equity’. You will need to update the title deeds with the land registry and, if there is a mortgage on the property, you will need the lender’s consent.
When being added to the property ownership, you can either own the property with your partner as ‘joint tenants’ or ‘tenants in common’. In my experience, this choice is often explained by conveyancers to their clients in the following way:
“If you own as joint tenants, this means if one of you were to die, the other person would automatically get all of the house, whereas if you own as tenants in common, your share of the house will pass to whoever you leave it to under your will”.
Whilst this explanation is correct, what is often not made clear to people is that, in the event they separate, this choice between joint tenants and tenants in common is also going to be highly significant in determining how much money they each receive from the equity in the property.
By choosing to own a property as joint tenants, you are expressly deciding that, in the event you separate from your partner, you will each receive 50% of the equity in the property as you own the property jointly. Therefore, regardless of whether one party paid all the deposit or has been overpaying the mortgage, you are each entitled to 50% of the property.
If you own as tenants in common, you can express how much of the property each of you owns. If you expressly state that you own in equal shares (i.e. 50:50), then in the event of your separation this express declaration is going to be the default position. This can be set out in a legal document known as a ‘deed of trust’ or ‘declaration of trust’.
The only way to rebut this presumption is to produce clear evidence that there has been a change in intentions by you and your partner about how the property should be owned – something it can be very difficult to prove in the absence of a written agreement to this effect.
What should you do before you move in together?
If you are moving into a property in someone else’s sole name, consider a cohabitation agreement. It can also include a statement by the non-owning partner that they understand that they will not be gaining a financial interest in the property regardless of any work they do or any payments they make. Such an agreement can also record the circumstances in which the non-owning person can be asked to move out of the property.
If you are going to change the ownership of the property so it is held in joint names, you need to consider what you would want to happen in the event your relationship broke down. Would you really be happy to share the value of the property 50:50 or would you expect to receive a share proportionate to your contributions to the purchase price? This should be clearly set out in a deed of trust at the time when the transfer of equity is carried out.
Talk to Woolley & Co Solicitors about cohabitation and the family home
If you are living with a partner who owns your home or are considering moving in with a partner, we can offer expert advice and support. Our team can ensure you are clear on your rights and that you can take the appropriate steps to provide security for your future.
At Woolley & Co Solicitors, our expert family lawyers can offer specialist legal advice on cohabitation agreements and cohabitation disputes. We can advise you on the full implications of getting married, including whether a prenuptial agreement may be appropriate.
Divorce & Family Lawyer, Bicester