When unmarried couples cohabit – legally, it’s complicated

Buying a house together as a couple, or moving into your partner’s home, when you aren’t married or in a civil partnership can drop you into the middle of a legal minefield.

Find out how to avoid the pitfalls, for a happy relationship.

If you’re one of a couple who are neither married nor civil partners, you don’t have any legal rights in relation to each other just because you live together as cohabitants – although there’s an exception if one of you is economically dependent on the other, you’ve been living together in an intimate and committed relationship for five years or more (or two years if you have dependent children), and the richer one of you dies. In that case, the survivor – the economically dependent one – can apply to the courts for (but won’t necessarily get) assets from the richer partner’s estate. Apart from that exception, it’s pretty much up to the two of you to decide what your legal relationship should be in relation to your home, and set up the necessary legal framework yourselves.

How you do this depends on whether one of you owns the home you live in, or you own it jointly.

If you own it jointly, you can either do so as (what lawyers call) ‘joint tenants’ or as ‘tenants in common’. If you are joint tenants, when one of you dies, the other automatically inherits the whole property, as surviving co-owner.

If you are tenants in common, each of you owns a part share in your home – for example, you might have agreed to own it 50:50, 75:25 etc. (this usually depends on how much you have each contributed to buying the property, but it doesn’t have to). When a tenant in common dies, their proportion doesn’t automatically go to the other, but is part of their estate, to be distributed in accordance with the deceased’s Will. So the surviving co-owner only gets the deceased’s share in the property if the deceased’s Will says they do – but if it says their share goes to someone else, then the survivor has to share the property with that new co-owner.

If only one of you owns the home you live in, the other has no rights in it (except, on death, as discussed above). The owner can ask the non-owner to leave at any time, and sell the property without asking the non-owner’s permission. If the owner dies, the non-owner only gets the property (or a share in it) if the owner has left it to them in their Will, or if the exception mentioned above applies. However, it’s more complicated if there are children involved – you’ll need special advice.

One way a non-owner cohabitant can prove they have rights in the home they share with the owner is to show there was an express agreement (either in writing or agreed orally) that they should have such rights. It’s much easier to prove there was an express agreement if it’s recorded in writing and signed. To make sure it’s valid, this agreement should be drafted by a solicitor.

If there is no express agreement the non-owner has to prove that an agreement should be inferred from the way they and the owner behaved towards each other, and what that agreement was. That can be extremely difficult.

The non-owner may be able to argue that they contributed some of the purchase price, shared the mortgage repayments or paid for substantive improvement to the property, as evidence of an agreement that they should have rights in the property. Then they have to argue what those rights are. It can all get very uncertain, and be expensive.

It can get worse if circumstances change – for example, someone moves out and stops paying the mortgage. Should the court treat the original agreement (whether express or inferred) as having been varied, so the person remaining in the property gets greater rights in it than they had before?

A cohabitant may also be able to claim rights in the property on a break-up of their relationship with, or the death of, the other cohabitant, if they were financially dependent on them.

The clear lesson is that, before co-habiting, make sure you agree:

If you are to co-own your property, whether you do so as joint tenants or tenants in common.
If you co-own as tenants in common, what your respective shares in the property will be.
If only one of you owns the property, what rights the other cohabitant will have in it (if any).

Generally, consider the other implications of co-habiting too, and write down what you have agreed over those too. In every case, formally record what you have agreed in writing. As you can see, it’s complicated, so legal advice is strongly recommended.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement*.