There are significant differences in how the law deals with property depending on whether you are married or not. If you are not married, the law does not recognise you as a couple and this doesn’t change depending on how long you have lived together or if you have children.
I’ve moved into my partner’s property – what rights do I have?
If you are in a relationship where when one person owns a property and your partner or you move into the property at a later date, this can cause problems should you separate. Often, the person who has moved in contributes to household bills and even the mortgage. If the relationship breaks down and there is no record of you as a legal owner (or tenant in a rented property), you have no automatic rights to stay in your home and you could find it difficult to recover any of the money you have put towards the property.
If there is disagreement between you and your partner as to whether you have acquired any ownership of your home or not, it can be difficult to prove that you should receive any financial provision to reflect any such ownership. This does not change if you have children with your partner. It can be an expensive and drawn out process trying to prove any claim you have.
I’ve bought a property with my partner – what rights do I have?
If you are not married and have bought a property with your partner, it is important that there is documentation that accurately reflects the contributions you have each made to the property if you would seek to recover your contribution in the event of a separation. If you do not set this information out in a Declaration of Trust (see below), the party putting more into the property is essentially making a gift to their partner – this is because the default position for joint owners is that the property is held in equal shares regardless of whether the property is held as tenants in common or as joint tenants. Recovering your additional contribution could be very difficult.
So what are my options?
Cohabitation Agreement (or Living Together Agreement)
A document which sets out your and your partner’s joint intentions for living together as well as what should happen if you separate. It is a document which is tailored to you and your partner and can cover anything to do with your relationship that you both agree on. This could range from what financial contributions you each make to your home and on what basis, to which pet lives with who after a separation.
Declaration of Trust
A document that specifically relates to owned property. This document enables a couple who have bought a home together but with unequal contributions to get back what they put in (assuming there is sufficient equity in the property) when it is sold. It can also cover contributions or loans made by parents of the couple.
Having a Will is particularly important if you are part of an unmarried couple as your partner does not have an automatic right to inherit property. Should your partner not be named as a legal owner of the property, your intentions as to how your estate should be dealt with have to be made clear in a Will to avoid your partner losing their home and any right to sale proceeds should the property be sold.
If you are one of a growing number of couples who are choosing to cohabit but not get married, you should consider the value of one or more of the documents set out above. Although reform of the rights of cohabitees has been spoken about for many years, it is not forthcoming. It is not sufficient to rely on discussions you and your partner might have had about what will happen should your relationship breakdown.
Although it can be difficult to raise the issue of what should happen if your relationship breaks down, the documentation set out above should be viewed like an insurance policy. By the time you need to rely on your insurance, it’s too late to take any out but you are grateful you have it! At Barr Ellison, we can give you peace of mind by providing you with a more secure future should you separate.