As a family lawyer, my involvement typically begins when relationships encounter difficulties or break down, especially regarding issues like the family home.
There are legal protections for assets, including the family home, for married couples or those in civil partnerships. However, unmarried partners have fewer automatic rights, and they often discover this during a separation.
If you’re living with a partner who owns the house or planning to, it’s crucial to understand your legal position and steps to secure your future.
Your partner owns the house; what rights do you have?
If your partner owns the house you live in, your rights may be limited unless you have a cohabitation agreement.
By default, you won’t have a share of the property unless you can demonstrate that you’ve contributed to the mortgage or home improvements or there was a shared intention of ownership to your disadvantage.
You also won’t typically have the right to stay long-term without a tenancy agreement or ‘licence to occupy’ from your partner, which can be precarious if you separate.
To protect yourself in this situation, consider a cohabitation agreement.
Are you entitled to half the house if you’re not married?
If you’re not married, you don’t have automatic legal rights to your partner’s property or assets, regardless of the duration of your relationship. The concept of a ‘common law marriage’ has no legal recognition in England or Wales.
The only way you can be entitled to a share of the family home if your partner owns it is if your name is on the title deeds or if you can demonstrate that you’ve acquired an interest in the property, as discussed earlier.
It’s crucial to seek specialist advice promptly when living with a partner who owns the house to understand your rights and the steps you can take to protect your position.
What are your rights to the property if you separate?
As previously discussed, your rights in this situation may be quite limited. However, depending on the circumstances, there are potential avenues to explore.
Firstly, your partner cannot necessarily evict you immediately solely because they own the property. You may have a right to remain on the property temporarily, so it’s important to seek expert advice promptly if this concerns you.
Additionally, you might be able to assert a claim to a portion of the property’s value even if your name is not on the title. To establish an interest in the property, you would need to demonstrate that there was a mutual understanding with the owner regarding your financial stake in the property, for example, 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
Proving this mutual understanding may not always be straightforward, but there is ample precedent where such claims have been successfully demonstrated in court.
What are your rights to the property if you marry your partner?
Once you marry, the dynamics change significantly. In the context of divorce, the family court has the authority to transfer or redistribute assets between spouses based on what is deemed fair and reasonable in your specific case.
Consequently, if marriage is on the horizon and you wish to clarify distinct property shares in the event of a separation, it’s essential to consider a prenuptial agreement. The ownership listed on the legal title alone may not determine asset division in a future divorce proceeding.
Adding your name to the property ownership
At some point while living together, you may decide with your partner to add your name to the ownership of the property, allowing both of you to share ownership. This can be the best way to establish a financial and legal interest in the property if your name is not on the mortgage and you are not married. This process is known as a “transfer of equity,” which involves updating the title deeds with the land registry and obtaining consent from the lender if there is an existing mortgage on the property.
When you are added to the property ownership, you can choose to own the property as “joint tenants” or “tenants in common.” Conveyancers often explain this choice to their clients as follows:
If you own as joint tenants, it means that if one of you were to pass away, the other person would automatically inherit the entire property. On the other hand, if you own as tenants in common, your share of the property will pass to whoever you designate in your will.”
While this explanation is accurate, what is not always emphasised is that this choice between joint tenants and tenants in common is also crucial in determining how property equity is divided in cases of separation.
By opting to own property as joint tenants, you are deciding that in the event of a separation, each of you will be entitled to an equal share of the property’s equity (typically 50%), regardless of who paid the deposit or contributed more towards the mortgage.
If you choose to own as tenants in common, you can specify the percentage of the property owned by each party. If you declare equal ownership (e.g., 50:50), this declaration will be the default position in cases of separation unless there is clear evidence of a change in intentions by both parties. This can be documented in a legal instrument like a “deed of trust” or “declaration of trust.
To rebut this presumption in the absence of a written agreement, proving a change in intentions regarding how the property should be owned can be challenging.
What should you do before you move in together?
If you are moving into a property owned solely by someone else, it’s advisable to consider a cohabitation agreement. This agreement can outline that the non-owning partner understands they will not acquire a financial interest in the property, regardless of any contributions they make. Additionally, such an agreement can specify the circumstances under which the non-owning partner may be asked to vacate the property.
If you are planning to change the property ownership to joint names, it’s important to think about what you would want to happen if the relationship were to break down. Would you be comfortable with a 50:50 split of the property’s value, or would you prefer to receive a share based on your financial contributions to the purchase price? These details should be clearly outlined in a deed of trust at the time of the transfer of equity.
Contact us about cohabitation and the family home
If you are residing with a partner who owns your home or are contemplating moving in with a partner, we provide expert advice and support. Our team can clarify your rights and assist you in taking the necessary steps to secure your future.
At DLS Solicitors, our experienced family lawyers offer specialised legal counsel on cohabitation agreements and disputes. We can guide you through the implications of marriage, including whether a prenuptial agreement might be advisable.
