Property rights

Unlike married couples, unmarried couples don’t have the same legal rights or claims over each other’s property.

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In England and Wales, unmarried couples (often called cohabitating couples) don’t have any rights in respect of sharing property or financial assets.

Understanding the law

Unmarried couples also don’t have any ongoing financial obligations towards one another if they separate. Any assets which are held jointly will be split in accordance with their legal ownership.

The position differs slightly where children are involved. Where unmarried couples have children and then decide to separate, a parent can make an application under Schedule 1 Children Act 1989 for maintenance, a lump sum payment or a property order. However, this money or property is for the child’s benefit only. The parent making the application doesn’t have the right to financial support just for themselves.

There is often a misconception of “common law marriage” which is widely referred to in the media. Common law marriage has not existed in England and Wales for centuries. No matter how long a couple have lived together or whether they have children or own property together, they will not have the same legal rights and protections as married couples or those in civil partnerships. Understanding the implications of this is vital. 

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Owning property together

Property rights for unmarried couples is complex. Depending on how the property is owned and what (if any) agreements are already in place, what happens will differ.  

Generally, when a couple buy a property together, they will own the property as either “joint tenants” or “tenants in common.” But what does that mean? And why is it important?

As joint tenants (sometimes called beneficial joint tenants):

  • you have equal rights to the whole property (no matter if one of you put more money into the purchase than the other)
  • if you separate, you are each entitled to an equal share of the property
  • the property automatically goes to the other owner if you die
  • you cannot pass on your ownership of the property in your will

As tenants in common:

  • you can own different shares of the property (often reflecting how much money each person has put into the purchase of the property)
  • if you separate, you are entitled to your share or proportion of the property
  • the property does not automatically go to the other owner if you die
  • you can pass on your share of the property in your will

When unmarried couples buy property together, they will often be advised to have a declaration of trust. This is a legal document which sets out how the property has been purchased, how it will be owned and, if it is sold, how the sale proceeds will be divided. Having clarity from the start helps avoid arguments further down the line.

Owning a property in your name only

If a property is owned only by one partner in a couple, that individual has the legal right to the whole property. However, there are ways in which the other partner can acquire rights in the property. The most common way is by the non-owning partner putting money into the property by: 

  • making mortgage payments,
  • contributing to refurbishments or
  • paying household bills and expenses.

This is called “establishing a beneficial interest” and it's a way of getting a court to formally recognise contributions the non-owning partner has made towards the home. The court can also sometimes recognise an understanding a couple had when a property was bought that both would have a share in it if it were sold even though only one of them legally owns it. 

If, as a non-owning partner you’re able to show that you have a beneficial interest in a property, you may be able to get the right to live in the property, prevent your partner from living there, or get a share of the proceeds if the property is sold.

This is probably one of the most complex areas of family law and advice will vary depending upon the exact circumstances of that couple. If you find yourself in this situation, legal advice is essential.   

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Property rights for unmarried couples FAQs

Clarity is king! A cohabitation agreement is a comprehensive and bespoke contract that formalises what unmarried couples living together want to happen in the event of separation or death. It sets out the plan for jointly and individually owned assets, property, finances, child arrangements, and anything else that couple wants to include.

A declaration of trust specifically relates to property and is an important way of setting out how a property has been purchased, how it will be owned and, if it is sold, how the sale proceeds will be divided.

Engaged couples have additional rights so, if you are seeking legal advice following a separation, always remember to mention this to your lawyer. 

Yes, you can. This is called “severing” the joint tenancy. There is a formal procedure which needs to be carefully followed. You may find it helpful to speak to a lawyer to make sure you get this right.

If you do decide to sever a joint tenancy and change it to a tenancy in common, then you will need to think about having a will to set out who will inherit your share of the property if you die. 

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