Tag: unmarried couples

When you first decide to live together and buy a property, romance is often at the forefront of your mind. The legal implications of living together may be the last thing you want to think about. You cannot imagine separating and may assume that, if things go wrong, the law will automatically protect you. But will it?

Many people believe that couples who live together have the same legal rights as married couples and that they are protected as a ‘common-law spouse’. In England and Wales, however, there is no legal status of common-law marriage, and living together does not automatically give you the same rights as marriage or a civil partnership.

Your rights to a property will depend on factors such as its ownership, any agreement between you and your partner, and the circumstances. It is therefore important to consider how you will own your home before you buy it.

If you are buying a property with your partner in England and Wales, ask your conveyancing solicitor to explain the difference between owning as joint tenants and tenants in common. The distinction is particularly important for unmarried couples because it affects your beneficial ownership of the property and what happens to your interest if one of you dies.

Joint tenants

If you own a property as beneficial joint tenants, you own the property together with equal beneficial interests. If one of you dies, the right of survivorship generally means that the property passes automatically to the surviving owner.

This happens regardless of whether the deceased partner made a Will leaving their interest in the property to someone else. The property passes to the survivor by survivorship, rather than under the deceased’s Will or the intestacy rules.

If one of you dies without making a Will, the surviving joint owner will generally still receive the property through this right of survivorship. This is not because an unmarried partner automatically inherits under the intestacy rules, but because of the way the property is owned.

You can find out more about intestacy and making a Will in our related guidance.

However, the right of survivorship applies to the property held as beneficial joint tenants, not automatically to all your other assets. An unmarried partner does not automatically inherit the deceased’s other assets under the intestacy rules. Although certain jointly owned assets may pass automatically to the survivor, other assets may pass to relatives or other beneficiaries under the applicable rules.

This is why it is important to make a Will and consider how your property, savings, investments and other assets should be dealt with if you die.

Tenants in common

If you own a property as tenants in common, you each own a separate beneficial share. These shares do not have to be equal. For example, you might own 60% of the property and your partner 40%.

This arrangement may be appropriate if you have contributed different amounts towards the deposit or purchase price and want your respective interests to reflect an agreed division. However, contributing more towards the purchase price does not automatically guarantee a larger share. Your intended ownership arrangements should be properly documented.

Unlike a beneficial joint tenancy, a tenancy in common does not carry an automatic right of survivorship. If one of you dies, their share will generally form part of their estate and pass according to their valid Will or, if they have no valid Will, the intestacy rules.

This means that your share could pass to someone other than your partner. If you want your partner to inherit your share, you should consider making a Will that reflects your wishes.

You can find out more about intestacy and making a Will in our related guidance.

Should you have a declaration of trust?

If you decide to own your property as tenants in common, ask your conveyancing solicitor whether a declaration of trust would be appropriate.

A declaration of trust can record each partner’s beneficial share and may set out how the proceeds should be divided if the property is sold. Depending on its terms, it can also address matters such as contributions to the purchase price, mortgage payments, improvements and arrangements if you separate.

A properly drafted declaration of trust can provide important evidence of your agreed ownership arrangements. However, the extent to which it protects you will depend on its wording and the circumstances. Your solicitor can advise you on how best to document your intentions.

You may also wish to consider a cohabitation agreement covering other financial arrangements if you separate.

Buying a property together in Scotland

Property ownership works differently in Scotland, so the terms ‘joint tenants’ and ‘tenants in common’ are not used in the same way as they are in England and Wales.

When a property is owned jointly in Scotland, the title deeds may include a survivorship destination. This is an arrangement under which a deceased co-owner’s share passes automatically to the surviving owner, rather than under the deceased’s Will or the intestacy rules.

If the property is held jointly without a survivorship destination, the deceased’s share will generally pass under their Will or, if they have no valid Will, the intestacy rules.

A survivorship destination can have significant consequences for both partners and their intended beneficiaries. The circumstances in which it can be varied or brought to an end depend on the title and the applicable law. Do not assume that it can only be changed by mutual agreement, or that it can always be revoked unilaterally.

If you are buying a property in Scotland, discuss your intentions with a Scottish solicitor before deciding how the property should be held. Make sure you understand what will happen if you separate or one of you dies, and whether the ownership arrangements reflect your wishes.

Protect yourself and your partner

Whether you are buying a property in England and Wales or Scotland, it is important to understand your ownership arrangements before you commit to the purchase.

Discuss the available options with your conveyancing solicitor, consider whether a declaration of trust or cohabitation agreement would be appropriate, and make a Will to explain what you want to happen to your estate.

Taking these steps can help you and your partner avoid uncertainty, reduce the risk of disputes and ensure that your wishes are properly documented.