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Unlike married couples or those in a Civil Partnerships, cohabiting couples do not automatically have financial claims against each other upon separation.
Property rights for unmarried couples differ depending on whether the couple live in rented accommodation or whether they own a property together. In this blog, we look at some of the most common questions cohabitating couples have about their legal rights in respect of property:
If you are living with your partner in rented accommodation and you are not named in the tenancy agreement, you have no rights to stay in the property if your partner asks you to move out.
However, if the tenancy agreement is in joint names you both have an equal right to stay in the property if your relationship breaks down.
If necessary, it is possible for a court to transfer the tenancy. For example, you may wish to transfer the joint tenancy into your partner’s sole name. However, bear in mind that your landlord would have to agree to any change to the tenancy agreement.
Top tip: Before moving into rented accommodation with your partner, ensure the tenancy agreement is in joint names.
If the house you live in is owned by you both, you both have an equal right to remain in the property if your relationship breaks down.
If you are the sole owner of the property only you have the right to remain in the property unless your partner obtains an order from the court that he/she has a right of occupation, known as an Occupation Order (more about this below).However, it is important to understand that your partner may be able to claim a ‘beneficial interest’ in the property. A ‘beneficial interest’ may give a cohabiting partner who doesn’t own the property the right to:
In certain circumstances it is possible, as an unmarried partner, to get a court order enabling you to remain (usually temporarily) in the property. This has to be done through court proceedings.
The starting point is to look at how the property is owned.
If you own the property 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 – If you own the property as Joint Tenants then you do not own shares in it but are considered to be joint and equal owners. Therefore, the presumption is that you each own the property equally.
Tenants in Common – If you own the property as Tenants in Common then you each own shares in the property. These shares can be owned equally, e.g. 50/50, or not, e.g. 70/30. If you own the 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 then there is a presumption that you will own the property in equal shares e.g. 50/50.
In some circumstances it is possible to show that a subsequent agreement between the couple needs to be considered – for example that although on the face of it the property is owned equally there is a reason why this is not the case.
These claims are fact specific and can be difficult to establish. The onus will be upon the person trying to show that a subsequent agreement should be taken into account to demonstrate this.
If the property is owned in your partner’s sole name there may still be a document confirming that you have an interest in it. Again, this would normally be in the form of a Declaration of Trust.
If there is no Declaration of Trust you may still be able to show that you should have an interest in the property if you can demonstrate that:
In other words you would, in most cases, have to prove that following an injection of capital/cash into the property you did so believing that there was an agreement or understanding that this was in return for a beneficial interest in the property and therefore you expect to receive this capital back when the relationship breaks down.
Top tip: Before buying a property together or injecting capital/cash into a property that you owned 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. Always seek legal advice from an expert beforehand.
Our specialist Cohabitation Team are experts in assisting unmarried couples when a separation occurs. As we have seen in this blog, setting up property ownership in the right way can prevent disputes in the future, and protect your legal rights in case the relationship does break down in the future. Please contact us to discuss your unique circumstances.