Owning Property & Trusts

Clarkson Hirst Solicitors Limited

Many couples now choose to live together without getting married. The rights of unmarried couples are not as protected as they are for married couples.

Property matters

Many couples who decide to live together buy property jointly. There are many things to consider when buying a property with your partner, including how the property is going to be paid for, who will fund the deposit, whether to own the property as joint tenants or as tenants in common, making a will and what should happen if you separate. Our property solicitors will be happy to help you decide how best to protect your interests and safe guard your futures.

Pre-nuptial agreement? Co-habitation contract? Living together agreement?

If you are living with a partner or about to move in with a partner, you may wish to protect your rights by entering into a Pre-nuptial agreement or a Cohabitation Contract/ Living together agreement to deal with how financial and property affairs should be dealt with and also what will happen in the event of your separating. We can draft these documents to your individual requirements. Contact Us for further details and see our charges for further details of the cost involved.

Joint tenants or tenants in common?

When buying a property with another person you can record how the property is to be held by you as either joint tenants or tenants in common. This is recorded by your conveyancing solicitor at the time you purchase the property and can have serious implications in the event that you separate or in the event of the death or either party or both parties.

Joint tenants own property in equal shares and in the event that one party dies the property passes automatically to the surviving owner.

Tenants in common can own property either in equal shares or in unequal shares, but in the event of a death the property does not pass to the survivor automatically and rather passes according to the deceased’s will or if no will exists according to the intestacy rules.

The arrangements you made at the time of purchasing the property can cause problems later depending on what happens, for example if you split up with your partner and are recorded as a joint tenant you may worry that in the event of your death your share of the property will automatically go to your ex partner. We can help you avoid this problem by severing the tenancy arrangement converting you from joint tenants to tenants in common. See our charges for details of the costs of severance of tenancy.

Another situation that can cause a difficulty is what happens in the event that you and your partner both die together. If you are joint tenants and both die together the likelihood is that the death of the first person will trigger the property passing automatically to the survivor. If that survivor then dies the whole of the property will then pass under the second persons will or under the intestacy rules. This could mean that the property passes to one party’s family with the other party’s family getting nothing. We can help you avoid this situation arising by advising you as to how your property is registered, severing the tenancy if necessary, drafting a declaration of trust and drafting appropriate wills.

Declaration of trust

When you purchase a property it is possible to enter into a declaration of trust dealing with how that property and the money invested in it should be dealt with. A declaration of trust can record the details of how the property is to be held, for example if you are purchasing a property with a partner and you are providing the deposit monies you may want to ensure that the deposit will be paid back to you in the event of any sale or dispute. A declaration of trust can also be useful if you are the parent of a child whom is buying their first home with a partner. If you are providing the deposit monies you may want to ensure that the monies will be paid back to you if the relationship comes to an end.

If you decide not to enter into any formal or documented arrangement you may be taking a great risk with no guarantee that you will ever get back your money. When entering into a relationship and deciding to live with someone there is inevitable a degree of trust involved but when that relationship breaks down the trust you once had tends to be the first casualty and promises once made or understandings once reached can soon be dismissed. Before you know it you are spending thousands of pounds arguing about money you invested in good faith. We can help you avoid these problems by drawing up a declaration of trust in a cost effective way. See our charges for further details.

Separation agreements

If you do own a property with your partner and decide to separate, you may need assistance from a solicitor if an agreement cannot be reached with regard to selling the property or one party or the other buying out the interest of the other party. If an agreement can be reached then that arrangement can be documented in a separation agreement or deed of separation. See our charges for details of the costs involved.

Cant’ agree? What now?

If you own property together with your partner it is possible to make an application to the Courts to determine the value of your interest in the property and the Court will take into consideration the value of the property, any deposits paid or contributions made towards the mortgage. The Court will also consider the intentions behind those payments whether they were to be made as a gift, a loan or payment of rent or were it intended by you and your partner that you should have an interest jointly in the property.

My partner owns the house. Do I have rights?

It is also occasionally possible for an individual to claim an interest in the property even if that individual is not a joint owner of the property if they have contributed to the property in other ways, for example by paying for improvements or contributing to mortgage payments. It may also be the case that the Courts will take into consideration any children of the relationship and whether they have any interest in the property that might be owned by your partner.

My partner wants me to move out

Although people living together do not at present have as many rights as married couples when it comes to splitting up unmarried couples may still have rights of occupation when it comes to staying in the home. We can give you further advice as to whether you would be entitled to make an application to the courts to remain in the property or regarding transfer of tenancy for rented property. Contact Us for further details.

Common law wife/husband

People often refer to “common law wife/husband” and there is a wide spread misconception that after a certain period of time a common law wife or husband has the same rights as an actual wife or husband. This is not the case at all and the general principle tends to be that each party owns what he or she purchased and any joint items would need to be sold and the proceeds split in the proportions in which the items were purchased. Often people will agree to share joint items equally between them.

Children matters

If a disagreement arises with your ex/partner regarding the care of your children it is possible that you may be able to resolve that dispute with the help of a solicitor. If the difficulties persist then we can advise you further on the options available to you for resolving the matter including mediation and court proceedings. For more details please contact us.

Making a will

It is extremely important to consider making a will if you want to ensure what should happen to your property in the event of your death. If you have a partner the law at present does not provide automatically for your partner to benefit from your estate. Whilst there are some circumstances where adult dependants and children may have a claim against your estate if they have not been provided for it is better to take precautionary action sooner rather than later to avoid problems for your loved ones. Making a will can ensure that your loved ones, including unmarried partners, can be provided with a share of your estate in the event of your death. See our section on making a will for further details about making a will.

Changes in the law

Many people think that the law for unmarried couples is very unfair compared to the law for married couples. The House of Lords are presently considering the Cohabitation Bill which is designed to give unmarried couples and cohabitants greater rights and protection. This is not however the current legal position which remains as detailed above.