30 Nov 2017

This week we’re supporting Resolution to help raise awareness about the lack of legal protection for cohabiting couples.

In our final Q&A as part of Cohabitation Awareness Week, Camilla East provides advice on buying property and splitting joint assets, including the need to have documents setting out specific rights if you are moving in with your partner and/or parents.

How should we legally hold our property if we are not married?

This depends on how you want your interest to be apportioned out when you dispose of it.

You can hold your property either as joint tenants or as tenants in common. If you hold your property as joint tenants then you both own the whole of the property rather than a share each. This means that when one of you dies, the property automatically passes to the other through a mechanism called ‘survivorship’ and your partner will own the whole of the property as before but in their sole name.

However, if you own the property as tenants in common then you each have your own separate share of the property (i.e. 60% interest is yours and 40% is your partners). This way, when one of you dies, that person’s interest in the property will pass based on what is stated in their Will. If they have not made a Will, it will be distributed according to the rules of intestacy.

It is important that any intentions set out in a declaration of trust relating to a property match the intentions set out in your Will.

Do I need a declaration of trust if I buy a property with my partner?

If you are planning on buying a property jointly with your partner then in English law the property will automatically be divided 50:50 (even if one partner contributed more to the purchase) unless you make a declaration of trust at the time of purchase saying in what proportions you own it.

If you are contributing to the deposit and/or the mortgage you should make sure that your share of the property is set out in writing.

Will I have a right of interest in a property if I have cohabited for a long time and my name is not on the title deeds?

If you moved in with your partner and your name is not on the title deeds then you have no legal right to a share of the property, even if you contributed to mortgage payments, bills and decorating.

Unfortunately, the law is so underdeveloped in this area that even if you did have the finances to pursue a claim in court for an interest in the property the chance of success is limited.

For further information, please contact our private real estate team.