Nowadays, it is common to hear statements such as: “cohabitation is practically the same as marriage”; “since we live together, it counts as though we were married”; “if one of us dies, the other automatically keeps the house”; “we both pay the mortgage, so the house belongs to both of us”. But is that really the case?
As Valentine’s Day approaches, conversations often centre around love and the healthy ways in which it may be experienced. But are we truly speaking about a healthy experience of love in all its dimensions, or do we continue to ignore some of the most important aspects of it?
The reality is that the way couples relate to one another has changed and, consequently, so have shared life projects. Whereas in the past the purchase of a first home generally took place after marriage, today many couples choose to live together before marrying, marry later in life or even decide not to marry at all, taking one of the biggest steps in shared life before marriage itself: buying a first home together.
What has not changed, however, are the legal consequences of that decision.
For many couples, purchasing a first home is a period of great excitement and happiness, but also one of considerable anxiety. Between property viewings, offers, mortgage applications and completion deeds, very few stop to reflect upon an essential issue that rarely appears on the checklist: the legal implications of purchasing a first home together.
This happens because, in our society, it remains somewhat taboo to speak about love and money in the same sentence. Discussing asset protection and division of property is often perceived as a bad omen, as there remains a widespread prejudice that planning ahead is a sign of distrust.
Yet the truth is precisely the opposite.
Discussing such matters says nothing about the couple’s love or commitment. It merely demonstrates maturity, respect and care on the part of each member of the couple towards the other, whether life continues to be lived together or eventually apart.
When an unmarried couple or cohabiting partners purchase a property together, they become co-owners. In other words, each member of the couple acquires a share in the property, generally corresponding to one half, unless otherwise agreed.
Where one member of the couple contributes more financially towards the acquisition of the property, it is advisable that the purchase deed reflects different ownership shares in favour of each party, so that, in the event of a future separation, the property may be divided proportionately.
The fact that the property is held in co-ownership rather than forming part of the couple’s matrimonial property regime (which would only occur if the property were acquired during marriage under a community of property regime) entails different legal consequences, namely:
In the absence of any provision to the contrary in the purchase deed, the law presumes that each co-owner holds a one-half share in the property and contributed equally towards its acquisition;
In the event of the death of one member of the couple, and assuming no will has been left, the surviving partner is not considered an heir to the deceased’s share, which passes instead to the deceased’s heirs, with the property thereafter belonging jointly to the surviving partner and to the deceased’s heirs;
In order for the property to belong to both members of the couple, both must sign the purchase deed. Otherwise, the property will belong solely to the person who entered into the transaction.
Between unmarried partners or cohabiting couples - that is, couples living in conditions analogous to those of spouses for more than two years - the law does not presume any community of property nor confer inheritance rights. Each member of the couple owns whatever is registered in their own name and, where any asset has been acquired jointly, each shall merely be a co-owner of that asset, regardless of the emotional relationship between them.
However, where the couple is in a legally recognised cohabiting relationship, the financially weaker party may, in the event of separation, apply for the right to remain in the family home. Likewise, upon the death of one member of the couple, the surviving partner benefits from a right of habitation over the property. Nevertheless, in neither case should these rights be confused with ownership rights, which continue to belong to each member of the couple according to their respective ownership share in the event of separation, or to the deceased’s heirs in the event of death.
This is a form of legal protection which the law does not extend to couples who are merely dating.
One of the most common myths that must be dispelled is the belief that the duration or stability of a relationship, in itself, generates legal protection. Indeed, many couples confuse trust with legal protection, and statements such as “we have been together for many years, we trust each other”; “we never thought this could end”; or “we have been together for so long that surely the law protects us” are extremely common.
All of these feelings and statements are entirely legitimate. However, they carry no legal value.
The law is not governed by feelings, intentions or expectations. Therefore, where decisions with patrimonial consequences are involved - such as purchasing a first home - it is essential that couples inform themselves and plan ahead.
After all, to love is also to protect and, legally speaking, protection requires planning.
At a time when relationship models have become increasingly diverse, it is essential that patrimonial decisions are taken in an informed, planned and conscious manner.
May this Valentine’s Day not merely be another moment of celebration, but also an opportunity to pause, talk, clarify doubts and plan the future together, so that, regardless of what life may bring, today’s decisions do not become tomorrow’s conflicts.
