About Cohabitants’ Property Rights

What is Cohabitation

When a heterosexual or gay couple have set up home together but are unmarried they are said to be cohabiting. Applications under this area of the law have also been made by other parties who are not considered to form part of the traditional idea of the family unit; these include property investors and adult children who had been living with a parent. It is often mistakenly thought that unmarried cohabiting couples have the same rights as their married counterparts nevertheless, this is not so and the reality is that there is still a vacuum in the law which results in the courts sometimes deciding cases in a way that may seem unduly harsh or unjust.

How can property be bought

Property can be bought in a number of different ways each of which would suit parties in different circumstances and which gives them varying degrees of rights to the property.

In Joint Names

There may be a situation where the property is purchased in joint names but the beneficial interest, meaning the advantages of ownership of the property like the right to live in it or sell it, is expressly held jointly by both parties meaning that each party owns 50% of the property. In this situation the interest in the property would pass directly to the survivor in the event that the other dies.

On the other hand, the property can be held in joint names but the advantages of ownership of the property are held in equal or unequal shares with all having an equal right to use the property but not an automatic right to the interest if the other tenant dies. In this situation the ownership interest of the deceased can be separately sold, mortgaged or left to another in a will. This second form of purchase would suit a couple who have children from a previous relationship or dependants who they can leave their ownership interest in the property to in a will.

Thirdly, property can also be bought in joint names but the ownership of the beneficial interest is not indicated.

In the name of one party

The property could also be bought in the name of just one of the parties. Whereas this can place the other party in a more unfavourable position than if the property had been purchased in joint names, it does not mean that they will be left unprotected by the law. In this situation the court will take a number of factors into consideration when deciding upon the division of the property. Courts may also take the following factors into consideration when making a decision when faced with any property dispute, regardless of how the property was purchased:

  • Any direct contributions to the payment of the mortgage;
  • Any contributions to improvements; this can be by providing the cash for the improvement e.g. paying a painter to paint the house or through     the   labour itself e.g. painting the house;
  • By paying any household bills or expenses which leave the other party free to pay the mortgage;
  • A contribution to the purchase price or the deposit

By contributing to the daily running of the household such as by taking care of the children, making curtains, doing the laundry etc. This means that anyone who stays at home and is not the breadwinner is not deprived of their property rights just because they may not have made a financial contribution to the purchase of the house or the daily expenses of the household;

Any gifts of cash or contributions made by a parent to aid in the purchase of the house or any gifts of land. This circumstance may, for example, arise when a young couple are purchasing their first home and may need some help in order to do so.

The above list is not exhaustive and there are many other factors that the court will take into consideration when coming to its decision of how property is to be divided. Each case is different and the decision that the court comes to will be dependent on the facts and circumstances of each individual case.

What happens when there is a property dispute

As with most legal disputes, if there is a property dispute it can be resolved by negotiation where the parties negotiate the best possible deal through their legal representatives and all come to an agreement upon how the property is to be divided. These types of disputes can also be resolved through mediation where an impartial mediator works with the parties and finds points which the parties agree on in order to come to a result that is fair and just to all involved. If the problem cannot be resolved through negotiation or mediation then it will then be up to the courts to come to a decision.