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Cohabitation – Joint Tenants or Tenants in Common

11 February 2019

Sharon McKie


Many people believe that couples living together can become “common law spouses”. This is not the case and on separation there is no obligation to support each other financially. The Court’s powers are very limited in considering financial circumstances of cohabiting couples.

Cohabitees can own the property jointly in one of two ways:

  1. Joint Tenants: if the property is purchased as joint tenants and subsequently sold, both are entitled to 50% of the equity. If either party dies, the survivor automatically gets to keep the whole equity in the property. The only exception to this is where the tenancy has been severed. This is done by one party giving the other written notice. The property is then owned as tenants in common.
  2. Tenants in common: this means that cohabitees own the property in separate shares. The shares can be equal or expressed in different amounts (example 80% - 20%). A tenant in common can deal separately with their share of the property. It can be left by Will to anyone of your choosing. This option is often chosen where one party contributes more toward the purchase price or wants to leave their share to a specific person such as a child.

Severing the Tenancy

Separating couples needs to consider whether to severe the tenancy and should also make a Will. There are risks and implications of severing the tenancy, particularly where one party is seeking more than a 50% share and legal advice should be taken before severing the tenancy.

Where only one cohabitee owns the property, the other may still be able to claim that they ought to have a share of the equity. The none owning cohabitee could make an application to the Court for a sale of the property. The Court will have to determine the extent of any share and this will depend on the available evidence. It is important to formally record evidence of intention in respect of a property wherever possible. It is not always clear how a property is owned when cohabitees separate. Steps should be taken to reduce the potential for conflict at the outset such as entering into a declaration of trust or a living together agreement.

Taylor Bracewell solicitors is a dynamic and forward-thinking legal firm with offices in Doncaster and Sheffield. We are passionate about providing individual services and connecting with our clients on a one-to-one basis. This enables us to fully understand our client’s legal needs and deliver exceptional value in all our services.

If you would like more information about Family, Wills or Property, or would like to arrange an appointment to discuss matters further then please contact us on 01302 341414 or 0114 2721884.