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Unmarried couples property rights upon separation

We answer common queries around what property rights cohabiting couples have in the event of separation.

24 May 2022

Over the last few years, the number of couples getting married in the UK has been on the decline, with many couples now living together without marriage, known as cohabitation. Some cohabitating couples enter into a legal agreement known as a cohabitation agreement. A cohabitation agreement contains each person’s individual rights and responsibilities when living together and can include unmarried couple’s rights with property division in the event of a relationship break down.

Many unmarried couples incorrectly believe that they have the same rights on separation as married couples, believing that they’re ‘common law’ spouses with shared rights over property and finances. Property rights for cohabiting couples differ depending on whether they live in rented accommodation or own a property together.

Cohabitating couples’ property rights in a rented property:

Cohabiting couples have equal property rights if they’re both included in a joint tenancy agreement. This means that both cohabitants have an equal right to occupy the property if the relationship breaks down.

A cohabitant can apply to court to transfer a joint tenancy into their partner’s sole name in the event of a relationship breakdown; however, this will also require consent from the landlord.

If couple’s are living together without marriage in rented accommodation but one party isn’t included in the tenancy agreement, they don’t have any cohabitation rights to stay in the property if their partner asks them to move out.

What are my property rights if I jointly own my home with my partner?

As with joint tenancies, where a property’s owned by both parties, cohabitation rights mean that both parties have an equal right to remain in the property if the relationship breaks down. Property can be held together as either joint tenants or tenants in common.

If the property’s held as joint tenants, there’s a presumption that both owners own the property equally. A significant characteristic of holding property as joint tenants is the right of survivorship in which the interest of one joint tenant will automatically pass to the surviving joint tenant on death.

Where a property’s held as tenants in common by cohabiting couples, each owner owns distinct shares in the property. These shares aren’t necessarily equal. If the property’s owned in non-equal shares, this would typically be outlined in a document called a Declaration of Trust.

If required, a cohabitant can apply to court to obtain an order for the sale of the property or to transfer their interest in the property to the jointly owning cohabitant.

What are my property rights if I don’t own my home with my partner?

If you’re living together without marriage, you might be left thinking, ‘my partner owns the house, what rights do I have?’. Where the property is in the sole ownership of one cohabitant, they have the right to remain in the property. However, the non-owning cohabitant may still be able to claim a beneficial interest in the property.

A beneficial interest is an interest in the economic benefit in the property, and would give a cohabiting partner who doesn’t own the property the right to:

  • Live in the property
  • A share of the rental income if the property’s rented out
  • A share of the proceeds of sale if the property’s sold.

Disputes between cohabitants regarding their beneficial interests in property are determined in accordance with the law of trusts. The primary legislation under which such issues are determined is the Trust of Land and Appointment of Trustees Act 1996.

The importance of cohabitation agreements for unmarried couples:

Cohabitation agreements, sometimes referred to as cohabitation contracts, record arrangements between two or more people who are living together without marriage. The agreement defines the cohabiting couple’s property rights and responsibilities, and regulates the financial arrangements between them, both during the period of cohabitation and in the event of separation.

Although cohabitation agreements are frequently entered into by couples who decide to live together, they’re also used by people who’ve decided to pool their financial resources and purchase a property together, such as friends or relatives.

Entering into a cohabitation agreement gives cohabitees the flexibility and freedom to organise their financial affairs as they wish, such as making provisions to support a former partner financially following the breakdown of their relationship.

Cohabitation agreements are also important where parents have gifted or loaned money to enable a child to purchase their first property with a friend or partner; the execution of a cohabitation agreement can protect the family money invested in the property.

Our experts specialise in cohabitation family law and we understand that everyone’s circumstances are unique. We tailor our advice to suit your individual needs and achieve the best outcome for you and your loved ones.

To speak to a cohabitation agreement lawyer, call us on 0330 107 6485 or contact us online here and we’ll call you back.

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