Property: Gay owners told to put it in writing

Documenting who owns what can save much heartache - and money - if the couple later part. By Robert Liebman
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Indy Lifestyle Online
ONE IN a cluster of jokes familiar among 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, yet often the money side of things is 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 Eighties as joint tenants, which meant that they owned it equally even though one of the two had paid 90 per cent of the purchase price.

They had a bitter split a few years later, and the one who had contributed less insisted on receiving her half-share of the property 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 for her partner as tenants in common, an arrangement in which the ownership can be in unequal shares - 90/10, for example, or 60/40 - and which can be declared in writing.

"This couple did not specify the ownership 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 was afraid of her home being repossessed, so she is still paying the mortgage".

The less well-off partner can be the one who finds herself exploited, or who feels 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 take account of the higher payments. If they split up, the agreement still records her as owning less than should be the case," says Anya Palmer, of the 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 to 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 the death of one of them.

"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," says Ms Burton.

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

When Ms Burton acts for the purchaser, "at the time of purchase, I ask: `Do you want your partner to have a right under a contract, or declaration of trust, or a deed to give her the right to occupy?' We can draw up a 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 the property at the appropriate time".

Leaving things to chance can be problematic. 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, 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 taken into account. Ms Burton advises lesbians, whether buying together or moving in to a property owned by a new partner, to put key decisions in writing.

"You can spell out `outgoings' - not just the mortgage but also the cost of repairs to the property, bills for gas and electricity and water and structural alterations. If one partner wants to leave, does the other have the option to buy out the share, and in what time-frame?" She also suggests that, to avoid costly solicitors' fees, the partners agree to settle disputes by arbitration.

Craig Lind, a lecturer in law at the University of Wales at Aberystwyth, says: "People in gay relationships often incorrectly assume that, because the law does not recognise their relationships, they can't 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 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 just as housemates and attempt to conceal the romantic side of their relationship.

"Couples really should `come out', at least to their solicitors," advises Ms Burton. "Otherwise they may be wrongly advised. That is partly why we are now seeing a lot of cases - these are people who have received the wrong advice in the past."

Judith Burton & Co solicitors: 0171-491 0048; Stonewall: 0171-359 5767; Craig Lind: 01970 62 2731

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