My boyfriend moved in during lockdown and is now paying me rent which I put towards the mortgage. Things are going really well, but we never got a chance to discuss what would happen if we ever split up and I am a little worried that my boyfriend could be entitled to a share of my flat. Is there anything I can do to protect myself?
Fiona Wilson, a partner and head of the family team at Goodman Derrick, a London law firm, says it’s good to hear that things are going so well with you and your boyfriend, but it is always sensible to be aware of possible legal implications for you in this sort of situation.
First, the key thing to understand is that, as you are not married, neither of you automatically acquires a legal interest in assets, including property, held by the other regardless of how long you live together.
So if you were to separate at some point in the future, the starting position would be that you would keep your flat and he would not be entitled to anything from it.
However, there are certain situations which could mean that your boyfriend could argue he was entitled to some sort of share of the flat. Under property law, while you would still be the legal owner of the flat, your boyfriend could acquire a “beneficial interest” in it if, for example, he contributed capital to it.
Paying you rent or helping pay bills is not likely to be enough to affect the position but if for example he paid off part of the capital debt of your mortgage, or paid for the flat to be refurbished, thereby increasing its value, he could potentially have an interest.
Equally if you promised him a share and he put money into the flat, for example to help pay your mortgage or to redecorate or refurbish it, relying on that promise, then it is possible he could acquire an interest in it.
It is not a particularly straightforward area of law and if there was a dispute to be dealt with by the court in the future, the judge would have to look at all of the background circumstances to understand what your common intention was.
The easiest way to avoid a dispute in the future is not to take any money from your boyfriend or better still have a “cohabitation agreement” drawn up to set out exactly what you intend in terms of what he may or may not acquire in terms of an interest in the flat. This could make it explicit that payments of rent or towards utilities or food bills would not be enough to give your boyfriend any interest in the flat. But you could also have it cover what would give him an interest in it.
Discussing what might happen in the event of a break-up is never an easy thing to do but it is well worth doing as it will give you peace of mind and could save you both a lot of stress and cost in the long run.
Steven Gasser, the head of the family law team at Laurus, says the legal framework for cohabiting couples is nowhere near as advanced or broad as it is for married couples.
It is entirely possible that your boyfriend could ask a court to determine his interest in the property should your relationship end. Where he has been making financial contributions, the court could potentially apply a mix of relevant legal principles, such as establishing that you hold part of the value on trust for your boyfriend.
Preventing this from happening in the event of a break-up is easy enough. The first step is to take legal advice to understand what sort of financial contributions from your boyfriend could lead to him arguing for an interest. Having had the advice, you should then consider entering a cohabitation agreement. This can set out everything from ownership of the property, to how much of the mortgage your boyfriend will pay, and what bills each of you will cover. Any assets can be included, and you can even protect one another from liabilities and debt.
The validity and enforceability of a cohabitation agreement has not been fully tested in law yet. However, so long as it is executed properly, a judge is more likely to follow what is outlined in the agreement — provided your boyfriend enters into it voluntarily and takes independent legal advice. The agreement will take the form of a deed which both of you will sign.
It might feel unusual to broach the subject of a cohabitation agreement, but it’s a sensible idea. You can always broaden the conversation to include life insurance, or updating your wills to include one another if these aren’t already in place. In the same way as insurance or estate planning, cohabitation agreements are a strong indication that you’re both looking towards the future, and are protecting each other’s best interests should the worst happen.
At this point it would definitely be wise to consider other forms of protection for your assets, depending on the seriousness of your relationship. The cohabitation agreement should be updated if you make any big life changes, such as having a child or moving to a new house.
Ultimately, as there is little in the way of protection in the law for unmarried couples, a cohabitation agreement is your best bet for creating financial certainty in these uncertain times. Agreements like these have the added benefit of removing any financial ambiguity between you, and making future disagreements much easier to resolve.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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