Understanding cohabitees' property rights and how to protect your interests

Contrary to common misconceptions, if you are a cohabiting couple—an unmarried couple living together—you do not have the same automatic legal rights to each other's property as married couples.

With the number of cohabiting households on the rise in England and Wales and expected to increase further, significant pressure is placed on the law to reflect this societal trend by encouraging couples to take proactive legal steps to secure their property rights.

However, without specific statutory protections, cohabitees must rely heavily on trusts law to govern property division, which can be complex and uncertain.

At present, unless property is held in joint names, the non-owning cohabitee has no guaranteed right to remain in the home if the relationship ends. However, with the right legal agreements in place, you can protect your financial interest in the property and avoid costly disputes.

If you're buying a home with your partner or need expert property law advice, contact our solicitors today.

What is trusts law?

When assessing the most suitable method for determining your property rights, it is imperative to take into account all the factors of your relationship, including financial contributions and ownership arrangements, as the courts will look at the evidence presented as a whole when hearing your case. A beneficial interest may be established where:

• Express trusts – The legal owner has created a declaration of trust of the property, which formally sets out the ownership shares. This may be done orally or in writing, so long as it complies with the formalities required under section 53(1) of the Law of Property Act 1925.
   
• Resulting trusts – If you have made direct financial contributions to the property's purchase price, the courts could infer your beneficial interest in line with the sum of your contribution. However, contributions must be direct payments at the time of purchase, as later payments—such as mortgage repayments or renovation costs—do not usually qualify.
   
• Constructive trusts – Where you are able to provide evidence of a common intention between yourself and your partner regarding shared ownership and have acted to your detriment as a result, the courts may infer a beneficial interest under this trust, in accordance with the Trusts of Land and Appointment of Trustees Act 1996.

In a number of cases, common intention has been established through agreements on mortgage contributions, renovations, and even non-financial contributions.

The doctrine of proprietary estoppel

In instances where a trust cannot be established, cohabitees may rely on the doctrine of proprietary estoppel. Under this doctrine, an interest in property may arise in the absence of a formal agreement if the legal owner made a promise or assurance that you relied upon to your detriment.

For the assurance to be upheld under this doctrine, you must show that you relied on it in a way that caused financial or personal loss, making it unjust for the legal owner to revoke their promise.

What are my rights in rented property?

If you are residing in a rented property with your partner and are not named on the tenancy agreement, you do not have automatic rights to continue residing in the property should you be asked to leave.

Occupation orders

If you wish to continue residing in the property on a temporary basis, you may apply to the Family Court for an occupation order (where applicable and typically in cases involving domestic abuse or exceptional circumstances). However, for most cohabitees, ensuring that both names are on the tenancy agreement is the best way to protect your position.

Actions you can take to protect your property interest

1. Consider naming both parties on the legal title when purchasing property together. This preventative measure will ensure your rights and entitlements to the property are clearly defined and secured from the outset. This may help avoid legal proceedings in the future and limit costs.
    
2. Enter into a cohabitation agreement. Such agreements can assist many cohabitees in establishing ownership interests and financial arrangements.
    
3. Enter into a declaration of trust. It is advisable to do this under the expertise of a legal professional to formalise each party's share in the property and provide clarity on future division.
    
4. Put a will in place to ensure property inheritance upon death. Cohabitees have no automatic inheritance rights, so a valid will is essential to protect your partner's interests.

Get specialist property advice today.

We understand that property division for cohabiting couples is never an easy conversation to address. However, if you are in a cohabiting relationship, it is essential to understand what rights you may have—especially if your name is not on the title deeds.

Our team of specialist property solicitors can advise on declarations of trust, wills, and structuring property ownership to ensure your interests are protected.

If you are buying a home with a partner or want to safeguard your financial position, contact our expert team today.