Property: Breaking up is hard to do: particularly if you are gay

Lesbians who enter into serious relationships casually court legal as well as emotional problems.
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Indy Lifestyle Online
ONE IN a cluster of jokes familiar to lesbians begins with the question: What does a lesbian do on the second date? Answer: Move in. But moving into someone else's home, or buying a property together, involves moving into someone's life. Stakes are high both emotionally and financially, and often the latter are poorly documented or not formalised at all.

Judith Burton, a solicitor whose firm has a large number of gay and lesbian clients, recalls a couple who bought a property in the 1980s as joint tenants, which meant that they owned it equally even though one had paid 90 per cent of the purchase price. They split up bitterly a few years later, and the one who had contributed less insisted on receiving her half share of the property's value. "It went to court, and the original owner had to settle because her former partner was legally aided. They settled at 40 per cent, it took years to resolve and was very costly."

Another woman bought a property for herself and her partner as tenants in common, an arrangement in which ownership can be in unequal shares - 90:10, say, or 60:40 - and which can be declared in writing.

"This couple did not specify the percentages, and after they split up, the one who had provided most of the money was the one who moved out," says Ms Burton. And, although she was no longer living there, "she became fearful of her home being repossessed, so she is still paying the mortgage".

The less well-off partner can be the one who is or feels exploited or ill-used, especially if she is upwardly mobile. Not uncommonly, lesbian partners make formal arrangements in which one contributes less than the other and owns correspondingly that much less. "Over the years her income increases, and she starts to contribute more, but they don't modify their original agreement to reflect the higher payments. If they split up, the agreement still records her as owning less than should be the case," says Anya Palmer, of Stonewall Housing Association.

In Ms Burton's view, many couples almost invite later trauma by neglecting to make clear arrangements at the outset. "And these situations are not unique to lesbians. They also apply to gay men and heterosexual non-married couples."

"The main issues when lesbians are buying or living together involve the right of occupation, the right to inherit and the division of net proceeds in the event of a split or breakdown in the relationship or the death of one of them," says Ms Burton. "If the couple were married, both would automatically have rights to occupy and inherit. Because lesbians are not and cannot be legally married, if the owner decides to throw her partner out, the partner has no automatic right to occupation."

Although frank discussions of money matters are not easy for many people, especially at the beginning of an intense new relationship, clarity at the outset can ward off ugly disputes at separation time.

When Ms Burton acts for the purchaser, she asks at the time of purchase: "Do you want your partner to have a right under a contract or declaration of trust or deed protecting her, or you can leave it up to trust law to intervene and say whether or not she has a right to occupy at the appropriate time."

Leaving things to chance can be chancy in unexpected ways. For example, if one of the partners in a tenancy in common were to die, "even if her partner has the right to occupy the property, in theory she could suddenly be occupying the property with her partner's parents". This is admittedly hypothetical and extremely unlikely, "but the parents or trustee could force a sale by obtaining a declaration from the court that the property should be sold", says Ms Burton.

A comprehensive range of issues needs to be addressed. Ms Burton advises lesbians, whether buying together or when one moves into a property owned by her new partner, to put key decisions in writing: "Who will contribute to the outgoings? In what shares? You can spell out the outgoings - not just the mortgage but also the cost of repairs to the property, gas and electricity and water, and structural alterations. If one wants to leave, does the other have the option to buy out the share and in what time frame?" Ms Burton also suggests that, to avoid costly solicitors' fees, the partners agree to settle disputes by arbitration.

According to Craig Lind, who is a lecturer in law at the University of Wales at Aberystwyth, "people in lesbian and gay relationships often assume that, because the law does not recognise their relationships, they cannot acquire rights in each other's property".

He notes that "a lesbian can acquire an equitable share in property amounting to shared ownership by, for example, paying some household expenses if those payments enable her partner to pay the mortgage. Some people even contribute actual mortgage payments but tend to think of it as rent and of themselves as lodgers, but with no rights".

Another problem area arises when couples present themselves as housemates and conceal the romantic side of their relationship. "Couples should `come out' at least to their solicitors," says Ms Burton. "Otherwise they may be wrongly advised. That is partly why we are seeing a lot of cases - they received the wrong advice in the past."

Another joke in the cluster asks: What does a lesbian bring on the second date? A: Everything. What she tries to take when the relationship ends, however, is no laughing matter.