What rights do I have in the family home?
This article is written by Alison Wilding from Hawley and Rodgers, our exclusive family law solicitor in Loughborough. In this article, Alison discusses what rights you have in the family home if you are unmarried, including your rights when purchasing a property in joint names, a sole name, how children affect your rights, and the rights of inheritance.
It is widely thought that if you live together, then you become common law husband and wife, but this is simply a myth. Cohabitees do not have the same rights as a married couple in relation to finances and property if they separate, no matter how long they have lived together or whether they have children together. Nor do they have the same rights of inheritance. It is therefore important to know what your rights actually are.
Purchasing a property in joint names
If you are buying a property together you will need to decide the shares that you are each going to own in that property when you purchase it. That will then decide what each of you will receive if you separate in the future. You can own a property in equal shares either as joint tenants (that means that you each own the whole property) or as tenants in common (this means that you own specific shares in the property) in equal shares or in unequal shares. Even if one of you has paid more money towards the deposit or the mortgage on the property than the other, if you purchased the property in equal shares, it will be very difficult to change this so it may be best to own the property as tenants in common in unequal shares and specify what shares each of you will own which is done in a formal deed.
You can change the shares in which you own a property after purchase but again this needs to be done in a formal deed to confirm the new shares and you may need to change the ownership from joint tenants to tenants in common in order to do this. You may also wish change the shares owned if one of you, for instance, pays a lump sum off the mortgage or pays for substantial improvements at a later date.
Property held in one party’s sole name
If the property is purchased in one party’s sole name, whether it was owned by them before you began a relationship or whether you moved in together at the same time, the non-owning party does not have any interest in the property in law.
If the non-owning party has made a financial contribution towards the purchase price or mortgage, or paid for or carried out substantial improvements, the non-owning party can try to claim a beneficial interest in the property. They will also need to prove that you both intended they would have a share in the property. but this can be inferred by a court by the actions taken by you both if there is no actual evidence. This is a complex area of law and it is far better to ensure that your intentions are put in writing in a formal deed before you move in together or before the non-owning party puts any money into the property, rather than leaving it and then having to sort matters out if you separate.
If the property is held in your sole name and you do not wish your partner to have an interest in the property then it is advisable to have a Cohabitation Agreement drafted to confirm this, keep your finances separate and not accept any money from them towards the property such as payments towards a deposit or the mortgage, or money towards or carry out any improvements.
If the property is held in your partner’s sole name and you do not make any financial contribution towards it, you will need to accept that you are unlikely to have any claim against the property, no matter how long you have lived together or whether you have children together.
What happens if you have children together?
Simply because you have children together does not change the ownership of a property. However, housing needs of the children do need to be taken into consideration and the parent with care could claim that they need to continue to reside in the family home until the youngest child reaches the age of 18 or leaves full time secondary education. An application can be made under the Children Act and this can be made whether the property is owned in joint names or in the other party’s sole name. The courts will take into consideration a number of matters when deciding whether such an application should be granted or not such as the ability of the party wanting to remain in the property to pay the mortgage, the needs of the children and the financial needs of the parties.
Rights of Inheritance
Cohabitees do not have the same rights of Inheritance as a married person. If you purchase a property in joint names and decide to own it as joint tenants, if one of you dies the whole property will automatically pass to the other person. It will not pass under their Will or under the intestacy laws if there is no Will. If however, you decide to own the property as tenants in common you own specific shares in that property and each party’s share would pass under their Will or under the Intestacy laws if there is no Will. It does not automatically pass to the other person.
If the property is only owned by one of you, if that person dies the property will not pass to the non-owning party. It will either pass under the deceased Will or under the Intestacy laws. This could potentially leave the non-owning party homeless. To prevent that happening, the owner can make a Will leaving the property to their partner or, if they want to leave it to someone else, such as children from a previous relationship, they can include a clause in their Will to allow them to continue to live in the property for life.
You therefore, need to consider very carefully about what you wish to happen to the property if either of you dies. A non-owning party may be able to make claims under the Inheritance (Provision for Family and Dependants) Act 1975 as a dependent but such claims can be quite limited.
Get the right advice
Having legal advice from a specialist family lawyer before you move in together is the best option so that you understand what you are entitled to and can make rational decisions about your relationship and your property. We are happy to provide you with such advice but we are also here to help you if you separate having not already made any formal arrangements.
If you enjoyed this article and would like some advice from Hawley and Rodgers, you can contact them via the methods below.
Website:https://www.hawleyandrodgers.com/
LinkedIn: https://www.linkedin.com/company/hawley-rodgers/
Email: [email protected]
Phone: 01509 230 333
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