Statistics show that the number of couples who are choosing to live together without getting married or entering into a civil partnership is increasing. For the purpose of this blog, I will use the phrase cohabiting couple to mean a couple who live together but are not married or in a civil partnership.

What are the implications for those couples?

I have previously explored some of these issues in my blog, The Myth of Common Law Marriage, but as part of Cohabitation Awareness Week 2017, felt that now would be a good opportunity to look at how property is treated.

What is the legal starting point for cohabiting couples and property rights?

Cohabiting couples do not automatically have financial claims against each other. However, where a property is owned by one or both of the couple, they may have a potential claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

For the purposes of this blog, I am going to focus upon the cohabiting couple’s home.

The starting point is to look at how the property is owned

If the property is owned jointly:

If the property is owned jointly then the first thing to do is to establish if it is owned as Joint Tenants or as Tenants in Common. This can usually be established fairly easily and cheaply by obtaining documents from the Land Registry.

Joint Tenants – Where a couple own a property as Joint Tenants then they do not own shares in it but are considered to be joint and equal owners. Therefore, the presumption is that they each own the property equally.

Tenants in Common – Where a couple own a property as Tenants in Common then they each own shares in the property. These shares can be held equally e.g. 50/50 or not e.g. 70/30. Where a couple own a property in non-equal shares then this would normally be evidenced by a document called a Declaration of Trust. If there is no evidence regarding the shares that they each own in the property then there is a presumption that they will own the property in equal shares.

In some circumstances it is possible to show that a subsequent agreement between the couple needs to be taken into account e.g. that although on the face of it the property is owned equally there is a reason why this should be departed from.

These claims are fact specific and can be difficult to establish. The burden will be upon the person trying to show that a subsequent agreement should be taken into account.

If the property is owned in one person’s sole name:

If a property is owned in one person’s sole name there may still be a document confirming that their partner has an interest in it. This would normally be in the form of a Declaration of Trust.

Where there is no Declaration of Trust a cohabitee may still be able to show that they should have an interest in the property if they can demonstrate that:

a. There was a common intention between the couple that the cohabitant would have an interest in the property and they have acted to their detriment in reliance of this.

or

b. The non-legal owner cohabitant was led to believe by their partner that they had a beneficial interest and as a consequence of this they acted to their detriment.

Conclusion

In most, but not all, of these cases the applicant has injected capital into the property in question and claims that there was an agreement or understanding that this was in return for a beneficial interest in the property, so they expect to receive this capital back when the relationship breaks down.

If you are thinking of injecting capital into a property that you hold jointly with your partner, or that is held in your partner’s sole name, make sure that you have an open discussion about whether it is intended that you will acquire a beneficial interest, or an increased beneficial interest, as a result. If so, you should seek legal advice and consider entering into a Declaration of Trust to avoid confusion and possible litigation later down the line.

This is a complicated area of law and each case will depend upon its individual circumstances. If you find yourself in this situation it is really important to get advice from a family law specialist as early as possible.

42 responses to “Cohabiting couples and property rights

  1. My father is in his eighties and owns his own property. His new girlfriend, 83, has her property but my father wants her to live with him as his property is much larger. His girlfriend will still keep her property and maintain this, and occasionally will stay at her own property and keeps her car there. His girlfriend is not investing in my fathers property or is financially dependent upon him. How do cohabiting arrangements affect any claims to either property but in particular my fathers should his health deteriorate and he requires care in a care home as we would potentially need to sell his property to pay for care, or in the event of his death. What rights or claims could his girlfriend make?

    1. Your father should seek legal advice about the implications of his girlfriend moving in to live with him and consider getting a formal cohabitation agreement in place to govern the terms of the arrangements. A cohabitation agreement provides strong evidential weight, and therefore likely to be upheld by the court if a dispute later arose, if it is drafted in a certain way with certain conditions being met when entering into it to make it contractually valid. Your father can contact us and arrange an initial consultation or if we are not local to him and he wants a local lawyer you can find one online here.

  2. Having my partner move in without any contribution to my small mortgage I have a will leaving it all to my children but it something happens while she lives with me. Is there any type of document to stop her ..

    1. Thank you for your comment. Depending upon your specific circumstances, potentially your partner may have a claim against your estate if you were to predecease her or may be able to claim an interest in the property whilst you are still alive.

      In order to minimise the risk of your partner claiming an interest in the property whilst you were alive you can enter into a formal cohabitation agreement to make your intentions clear. I would suggest that you seek advice from a family solicitor who is a member of Resolution to assist you with this. If we can assist you further please do not hesitate to contact me.

      With regard to potential claims against your estate, I would suggest that you speak with a Private Client solicitor who will be able to advice you of potential ways of minimising the risk of this.

  3. My relationship has broken down and I had to leave the family home with my son for our own safety. We are currently living with my mother and I have applied for a council house. My ex partner is living in the family home but the mortgage and deeds are in my name. I want to sell the property to clear 2 unsecured home improvement loans which will leave no equity in the property and likely there will still be some debt left over. I need to do this to be able to afford living costs once I have secured a council property. Can my ex partner stop me from selling the property?

    1. Thank you for your comment. I am afraid that I am unable to provide specific advice in this forum as much more information would be needed to be able to properly advise. I would suggest that you seek advice from a family solicitor who is a member of Resolution.

  4. i have been cohabiting with my girlfriend for the last 12 years and 2014, l contributed to the loan for her to purchase a two bed house in her sole name. Since then, l have contributing 50% to the mortgage repayment and all the household bills. Until, 10th Jan 2019, after returning from christmas holiday in USA, l received a text to inform me that she wanted break up. On arrival on the house, l was refused entrance into house and my attempts Police were called so that l could not enter the house. Now what are my options of getting equity on the property ?

    1. Thank you for your comment. It may be that you are able to successfully claim that you have an interest in your ex-girlfriend’s property however, this will depend your specific circumstances and is not something that we would be able to advise upon based upon your blog comment. If we can assist on a formal basis, please do get in touch.

  5. Hi, I left a 14 year relationship to be with my current partner, i left with nothing as my child was only 6 at the time so stayed with her mother. I have been with my partner for 12 years, we remortgaged her property in joint names and are legally joint owners and have halved everything ever since. She has told me she wants to separate and our house is up for sale. There was no beneficial interest declared and the assumption was that we would see out the full mortgage term and sell the house to retire early and downsize. She is now trying to tale a larger share of the sale even though we both legally own the property. Am i entitled to half as i think i am. I offered a 60/40 split out of goodwill which she refused so i have removed that offer. Where do i stand legally ?

    1. Thank you for your comment, I am afraid that we are unable to provide case specific advice in this forum. However it does appear that there is an express trust but we would need to review the circumstances in more detail to be able to provide specific advice surrounding this complex area of law. I would strongly suggest that you obtain legal advice from a Resolution trained lawyer; if we can assist please do contact us and we would be happy to help you.

  6. my grand daughter is in a 5 year relationtionship and lives with her boyfriend. he bought a buy rent apartment and obtained a mortgage in his name only. she pays half of all bills and also pays rent to him.she also paid for the furniture to equip the fllat. in the event of a break up how will she stand

    1. Thank you for your comment. The starting point would be that your grand daughter does not have an interest in the flat and the burden would on her to establish (from a legal perspective) that she does.

  7. Hi, my father was with his fiancee for 12 years and for the 12 years he has given her £650 per month for bills and for the mortgage. In 2015 my father paid £18,000 off the mortgage and put a new bathroom in and did home improvements making the value of the property increase by 25K now they have split up she is saying he is only entitled to £18,000 and is not entitled to any money from prior to 2015 even though from 2007 -2015 he was contributing £650 per month to bills and the mortgage. The mortgage as always been in her sole name. Is my father entitled to more as we both think he is?

    1. Thank you for your comment. I am afraid I am unable to advise on individual circumstances and would suggest that your father seek advice from a family lawyer who is a member of Resolution. If I can assist on a more formal basis then please let me know.

  8. Hi, I have been living with my Girlfriend in my house that I own solely under my own name for 4 years, I have made it clear verbally that when she moved in that she would not have a claim on the house, which she was in agreement (verbally). I do not charge her any rent but she contributes by paying the council tax and food bills. If we broke up would she have a claim on the house?

    1. Thank you for your comment Adrian. It would be sensible for you to enter into a cohabitation agreement to formally record that your girlfriend has no interest in your property. I would suggest that you contact a family lawyer who is a member of Resolution. Please let me know if I can assist on a more formal basis.

  9. I am a widow & own my house paying all finances connected to it. My man friend is similar, owning his own house which is his main residence. Both pension provider and council tax bills (single occupancy discount) ask me to confirm if I am co-habiting. If he stays a few days each week would this be classed as co-habitating?

    1. Thank you for your comment. I am afraid that this is not something that I am able to advise upon in terms of what the council or your pension provider would classify as a cohabiting relationship. I would therefore suggest that you explain your circumstances to them.

  10. Hi , I have been cohabiting for 18 years and we have 3 children together Our property is in both our names My youngest child is 11 and I want this man out of my life for good
    Can I remain in the house with the children or do I need to leave??

    1. Thank you for your comment. If your property is owned in your joint names then you both have a right of occupation. There may be applications to allow you to remain in the property but these will depend entirely upon your individual circumstances. I would suggest that you seek advice from a family lawyer who is a member of Resolution and please let me know if we can assist on a more formal basis.

  11. My daughter and 2 grandchildren moved house with her partner nearly 2 years ago. They have been together 4 years, but unfortunately the relationship has broken down. it is his house, solely in his name, but bought for them as a family. He moved out and went back to live with his parents, but keeps coming back, and has now moved out again. He has now told her that he is selling the house privately to an uncle, which, potentially could mean a quick sale. My daughter and grandchildren will have nowhere to go as the council do not have any empty properties at this moment in time. Where does she stand?

    1. Thank you for your comment, Louise. This must be a very worrying time for you and your daughter. I assume from your comment that your daughter and her partner are not married. She may, potentially, have a claim under Schedule 1 of the Children Act as well as potentially under other legislation depending upon her specific circumstances. I would suggest that your daughter seeks advice from a family lawyer who is a member of Resolution.

  12. hi, my situation is I was cohabiting with my ex for a few years, last 7 we share a tenancy but because the landlord wanted to sell the property and she was not working I went to the bank to get the mortgage solo in my name, my ex never wanted her name on the deeds.. after 4 months the relationship ended (again) and I couldn’t live there anymore.. or even talk without a tantrum on her part. we had a mediator that decided the best option (for her) was I signed an agreement stating my ex would stay in the house and pay the mortgage that was a fixed amount for a period of 22 months. That agreement ended on 31stMarch 2020, by this time I went to the bank remortgage my property and got the better deal, I wish to move to my house and pay my mortgage, for the past 2 years I have been paying rent+council tax to live in another property, I cannot sustain this situation anymore, she refuses to leave and I don’t know how to end this nightmare! Can you give me guidance on what should I do next? Thank you

    1. Thank you for your email, Benjamin. I am afraid that I cannot provide specific advice within this blog and would suggest that you seek advice from a family lawyer who is a member of Resolution.

  13. My ex (not married) partner did not contribute to the purchase of the family property. She has not paid any bills or made any mortgage payments throughout the relationship. We have 1 child together. The deeds are in my name and i contributed all the money for the deposit for the initial purchase and paid for all subsequent modifications. She vacated 5 months ago and is threatening TOLATA. She has no proof of any payments/contributions or any written agreement with respect to the property. I do not wish to engage in further expensive litigation. Can you advise if there is a threshold to meet before a court will accept the initial case and contact me?

    1. Thank you for your comment, Jimmy. The court do not have a threshold which needs to be met in order for a claim to be issued. However, your ex-partner would be required to set out her case as part of issuing court proceedings. I would suggest that you seek advice upon your specific circumstances from a lawyer who is a member of Resolution.

  14. My ex (not married ) and I bought a house as joint tenants. I paid the deposit £100k, and paid all of the mortgage payments. Now that we have spilt he still refuses to pay his 20% of the mortgage. How can I make him pay his share. I am trying to sell the property and want to know can i reclaim his missed payments (7 years in total) and my deposit from the sale of the property.

    1. Thank you for your comment. The starting point if you purchased the property as joint tenants is that you and your ex-partner own it equally however, that presumption can be displaced in certain circumstances. I would suggest that you seek advice from a family lawyer who is a member of Resolution so that they can explore your circumstances with you. If we can assist on a formal basis then please let us know.

  15. Hi, my relationship with my ex girlfriend has broken down and we have now split. We were never married but have two children. I bought a house 4 years ago, deeds and mortgage in my name and she has never contributed towards a single bill. Is she entitled to anything? Thanks

    1. Thank you for your comment. As you will appreciate, we cannot provide specific advice in this forum although, the burden would be on your ex-girlfriend to establish that she has an interest in the property. Furthermore, as you will have read, she may be able to establish a claim under Schedule 1 of the Children Act depending upon your circumstances. I would strongly suggest you seek advice and if we can help on a formal basis then please let us know.

  16. Hi I split up with my partner of 7 years 3 years ago, we share 1 child together, we bought a house together 3 years ago and 2 weeks later she moved out both our names are on the mortgage but she did not pay any of the 20 grand deposit nor has she paid any contributions to the mortgage in those 3 years or other bills. I have done a lot of renovation work to the property since then and it has added great value. When she left I bought her a car at £1800 and helped her with rental deposit and getting started in her new house because she said she was entitled to something if I am remaining in the house. I have since then moved on and started a family with my new partner and I am now selling the house and she says she has the right to half of it. Is this correct?

    1. Thank you for comment. I would strongly suggest that you seek advice upon your situation as a matter of urgency. If the property has remained in joint names then the starting point is that she has an interest, however, there would need to be a detailed exploration of how the property was purchased (Joint Tenants or Tenants in Common), what discussions you had at the point of separation and the works carried out. If we can help on a formal basis then please get in touch.

  17. I have recently spilt up with my partner and requested that he leaves the home, this has been ongoing for 6 months. I am the sole mortgage owner, and have been paying the bills solely for 6 months. I have had to leave the home with my two children due to him removing to leave, I have offered him a large sum of money and again he is refusing to leave the property. What legal proceedings can I take?

    1. Thank you for your comment. If you and your partner are not married and the property is in your sole name then the starting point is that your partner does not have a right to occupy the property and would need to establish that he has a right of occupation. I would suggest that in the first instance you seek advice from a family lawyer who is a member of Resolution. If you would like us to assist on a formal basis then please get in touch.

  18. Hi, I have 2 kids with my partner, and have been in a volatile relationship for almost 12yrs, where I always get kicked out. Our marriage only lasted 1 year. However, for the past 3 years i have been paying £850 to her account. She now want to sell her property and buy a bigger property but says I do not have a share at all, as I was paying what i would pay if i did not live with her. – is this true?

    1. Thank you for your comment. You have mentioned that you were married but that this only lasted for 1 year. Potentially being married may have a significant impact on your position. I would therefore strongly advise that you seek advice from a family lawyer who is a member of Resolution. If you would like us to assist on a formal basis then please get in touch.

  19. “Where there is no Declaration of Trust a cohabitee may still be able to show that they should have an interest in the property if they can demonstrate that:
    a. There was a common intention between the couple that the cohabitant would have an interest in the property and they have acted to their detriment in reliance of this.
    or
    b. The non-legal owner cohabitant was led to believe by their partner that they had a beneficial interest and as a consequence of this they acted to their detriment.”

    Which case law or statutory provision covers this?

    1. Thanks for your comment. This area of law is complex and we would recommend you seeking advice from a Resolution lawyer if you think this may be relevant to your situation.

  20. Hi

    My partner moved in with me at my mums in April 2017. In September 2020 I bought a rental house souly under my name funded enitirely by myself which I have documented evidence for.

    Verbally it has always been made clear that the property is mine and I manage this and bank in on the monthly rent.

    In November 2020 we also had a child. Again we are still living at my mums house.

    Should we decide to split up would she have a claim to my rental/investment property?

    1. Thank you for your comment. I am afraid that we are unable to comment upon specific situations within these blog replies. However, regardless of whether your partner is able to establish whether she has a claim against your property, as you have a child together, she may have a claim under Schedule 1 of the Children Act. We would recommend seeking advice from a Resolution lawyer.

  21. My son purchased a house solely in his name. He intended to renovate the house and has spent money in doing this. His fiance took out a private loan to pay for the bathroom and heating. They never fully moved in and have parted now. Mu son has been paying his former partner payments for this loan but since this time she now wants more money and is staytng that she is able to claim the equity in his home.

    1. Thank you for your comment. Potentially your son’s finance may have a claim under the Married Women’s Property Act. However, these claims are highly fact-specific and I would suggest that your son seeks specialist advice. If we can help on a formal basis then please let us know.

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