Please note that this News item is not maintained, and reflects the law as at the date of publication or update.
When a couple are buying a property together, they rarely think about what will happen in the event of a separation. However, the decisions they make at the time can be absolutely critical. (For couples who are married or in civil partnerships, a court can adjust their share of a property – but this isn’t possible for couples who are “merely” living together).
A solicitor advising someone who co-owns a property but isn’t married party on what they should receive from the property on separation will want to check what declarations were made in the transfer deed at the time of purchase (if any). If a box was ticked to indicate that the property was held as joint tenants, or tenants in common in equal shares, then this will almost certainly be determinative of their interests – regardless of the contributions that each made. If they ticked the box to indicate that they wish to hold the property in unequal shares, then those shares should have been declared, usually by way of a separate declaration of trust. Either way, such declarations amount to an express declaration of trust, and are likely to be determinative of their interests in the property even if, with the benefit of hindsight, this is not what they wanted.
However, it is also possible for a person whose name is not formally on the title to a property to have an interest in it. This could arise as a result of a contribution made to the purchase at the outset, or as a consequence of an agreement or understanding between a couple that the property belongs to them both and that being relied upon by the non-owner in a particular way. Such situations can be extremely complicated, and having a clear express declaration of trust (which can always be updated if necessary) is by far the best approach.
Making a Cohabitation Agreement at the outset can go a long way to removing any misunderstandings, and the stress that can arise on the breakdown of a relationship. Such an agreement can include a clear declaration as to who owns what shares, and it can be updated as required.
For more information and advice please contact a member of our family law team.
