Publish date

25 May 2023

We are not married but have lived together for years: am I entitled to a share of our family home?

The position with cohabiting couples is very different to that with married couples.  There is no entitlement to assets that the other person owns and, contrary to popular assumption, there is in law no such thing as a ‘common law’ husband or wife.  This means that the court looks at strict legal ownership in the event of separation, unlike with married couples where a court can transfer assets if it feels that in all the circumstances it would be fair to do so.

Home ownership as an unmarried couple

If you are unmarried and not in a civil partnership and live in a property which is owned in your joint names, you will either be named as ‘beneficial joint tenants’ or ‘tenants in common’. Either way, you are likely to be entitled to a share of the proceeds of sale when the property is sold, subject to any express agreement which says otherwise, such as a declaration of trust providing for one party alone to own the beneficial interest in the property, despite it being in joint names legally.

If you live in a home that is registered in your partner’s sole name and are not married or in a civil partnership then you have no automatic right to a share of the equity.  It may be possible to make a claim if you can satisfy the court that you have acquired an interest as a result of legal principles called resulting and constructive trusts, or have been led to believe that you have an interest in the property and acted in reliance on this, something known as proprietary estoppel, but not everyone is able to establish such an interest.

There is no entitlement to an interest in the property as a result of, for example, bringing up children or taking responsibility for more of the day to day household chores. Somebody who has lived in a property owned by their partner for many years and made no contribution could be left without any interest in the property.

If you are considering or going through a separation, it would be sensible to take advice as to your position as soon as possible as the background and facts of your case will need to be properly considered.

If you have children, it may be possible to make an application to use the property, or a share of the equity, on behalf of the children until they are 18 or finish full time education, but this will not give you an interest in the proceeds; rather, you will effectively be a trustee in resident as a result of looking after them.

How can a declaration of trust help?

If you are considering purchasing a property then it would be sensible to consider recording in a cohabitation agreement (or a declaration of trust) what your respective interests are intended to be in that property. A cohabitation agreement also allows you to record the intended financial arrangements between you and your partner during the course of the relationship, to include for example how the mortgage and any bills will be paid, and any impact this may or may not have on your interests in the property. By recording these intentions at the outset, whether the property is going to be jointly owned or owned in one person’s sole name, it can help avoid uncertainty and cost in the event of a future separation. Again, this is something that our Family team will be able to advise you on.

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