Property rights of cohabiting couples

According to the Office for National Statistics, in 2022 there were 3.6 million cohabiting couple families in the UK – that's about 19% of all households. But while a growing number are choosing to cohabit, many don’t realise or understand that there are significant legal implications, especially when it comes to the relationship breaking down.

There’s widespread belief in the concept of the common law marriage. Couples think they are protected when they buy or own property together and if their relationship was to break down. There’s also an assumption that the law provides a “fair” financial remedy if a cohabiting relationship ends. Unfortunately, this isn’t true.

Common law marriage doesn’t exist and hasn’t done for centuries. Cohabiting couples don’t have the same rights as married couples and courts don’t have the powers to reallocate assets, as they can on divorce, even if a property is involved.

When it comes to property ownership, things can get complicated very quickly. For example, there are numerous types of ownership structures when a couple live in a property owned by one or both of them.

There are typically two tiers of property ownership:

• Legal ownership - The legal owner will be named on the Land Registry title for the property
• Beneficial owners - The names of the beneficial owners will not necessarily appear on the Land Registry title but they have the right to share the proceeds of sale and to occupy the property

When a couple live in a property owned by one or both of them, it will usually be owned in one of the following ways:

Joint tenants

This is where you and your partner are named on the legal title and own the whole of the beneficial interest jointly. You and your partner have equal rights to stay in the property and, if there is a sale, you will usually split the sale proceeds equally. When one of you dies, the other automatically inherits their share of their property (you might hear this called “the right of survivorship”).

Tenants in common

This is where you and your partner are named on the legal title but own separate shares in the beneficial interest. If there’s no express agreement about what those shares are, then the starting point is that you own 50% each. Usually couples own property as tenants in common to specify that they own more/less than 50%, or to ensure that they can each pass their share of the property under their Will, rather than it going to the other partner automatically on death.

Sole ownership

Only one partner’s name appears on the legal title and they are the legal owner. If you are the sole owner you have a right to stay in the home. However, your partner may be able to claim a beneficial interest in it.

If you don't have children and your partner is the sole owner of the home you live in, the only way you may be able to claim long-term rights to the property is if you’re able to show you have a 'beneficial interest' in it. This is a way of getting a court to formally recognise contributions you’ve made towards the home. The court could also recognise an understanding you had with your partner when you bought the home that you would have a share in it if it were sold. If you’re able to prove you have a beneficial interest in the home, you may be able, for example, to get the right to live in the home, prevent your partner from living there, or get a share of the proceeds if the property is sold.

Whether you are looking to claim a beneficial interest in your partner’s property or you’re facing a claim, it’s vital you speak to a family lawyer who specialises in cohabitation property law. These cases are complex and the process can be lengthy. They can be very costly and can result in the loser paying the other party’s legal costs. 

If you do have children and your partner is the sole owner of the home you live in, there is another option to explore. The court does have the power to order one parent to provide to the other a range of financial support including a cash lump sum, providing a property until the youngest child reaches a certain age, and sometimes the funding of other costs for the benefit of the child such as school fees or a car. This is often called a Schedule 1 application and can be made either alongside an application dealing with the beneficial interest of the family home or separately. 

It's important to be aware that a claim under Schedule 1 is focused on financial provision to meet the needs of the children. For example, if a property is being provided, it will usually return back to the paying parent when the youngest child reaches 18.