According to the BBC news a couple of days ago, the number of first-time buyers relying on mum and dad for the deposit to buy their first home or to climb the property ladder has reached a record high https://www.bbc.co.uk/news/business-39381157 This is not surprising, given that house prices are, on average, seven times salary. The problem is a lot worse in London and the home counties.

As a specialist family finance solicitor, with many years experience in dealing with divorce and cohabitation breakdown, I have seen plenty of examples of where parents have helped their son or daughter to buy a property, only to find that when their son or daughter’s relationship breaks down, half or even more of that money goes to their ex.

Why is mum and dad’s money vulnerable?Many people assume that just because the money has come from their family, or just because the house is bought in their son or daughter’s sole name, the money is protected. This is not true. Partners and spouses can make financial claims over property, even if their name is not on the title deeds and even if they have not paid the mortgage or the bills. Marriage makes the family money even more vulnerable because normally the divorce court will completely ignore the source of funds used to buy the house.

Many people assume that just because the money has come from their family, or just because the house is bought in their son or daughter’s sole name, the money is protected. This is not true. Partners and spouses can make financial claims over property, even if their name is not on the title deeds and even if they have not paid the mortgage or the bills. Marriage makes the family money even more vulnerable because normally the divorce court will completely ignore the source of funds used to buy the house.

Many people assume that just because the money has come from their family, or just because the house is bought in their son or daughter’s sole name, the money is protected. This is not true. Partners and spouses can make financial claims over property, even if their name is not on the title deeds and even if they have not paid the mortgage or the bills. Marriage makes the family money even more vulnerable because normally the divorce court will completely ignore the source of funds used to buy the house.

Increasingly, I am being asked by clients how they can protect the parents’ money from relationship breakdown. There are a large number of ways of doing it, and they each have their pros and cons. However, the key message is that whatever way you choose, it needs to be agreed and properly documented at the time the money is provided by mum and dad.

The different ways of protecting mum and dad’s money

  • A loan from mum and dad
  • Mum and dad co-owning the house
  • A gift of the deposit
  • Putting the gift of money into a ‘trust’. The trust can then lend, or give money to the beneficiary of the trust fund to buy the house, or even co-own the house with the beneficiary
  • Mum and dad own the house completely, but let their son or daughter occupy the house

The best option will depend on the family’s circumstances. That is why it is important to get specialist advice. For example, if parents are wealthy and know that they have a lot of capital that they won’t get through in their lifetimes the option of a gift or trust fund might be the best way to help the family member get on the property ladder and save on inheritance tax. A record of the gift will help evidence it for the tax man and will also help if the son or daughter later starts to live with a partner at the property.

If a family is not wealthy then a loan agreement may be the best way forward. The key to a family loan is that it can be prepared to meet the family’s needs over when the money is paid back and if the loan will charge interest or not.

You need a cohabitation agreement (or a pre-nup)

Whatever option you choose, it is highly advisable to have a cohabitation agreement (or a pre-nup, if son or daughter are definitely going to get married) before the property is bought, which explains what will happen to the house and the money if the relationship does not work.

A cohabitation agreement or pre-nup are absolutely essential if mum and dad are going to gift the money to their son or daughter because it is not being protected in any other way (e.g. a loan or co-ownership).

If you ask most parents whether they need a written agreement over giving or lending money within the family they say that raising the topic would make them feel uncomfortable. My own view is that it is the parents’ money, it is perfectly reasonable for them to want that money to stay in the family, and it is therefore perfectly reasonable for the condition of that help to be a cohabitation agreement or a pre-nup.

Cohabitation agreements and pre-nups are flexible and bespoke to the couple entering into the agreement. The agreement could say that the non-owning partner won’t have any claims at all on the property or it could say how the joint owners will share the equity in the house if they split up. For example, the agreement could say that mum and dad will be paid back their loan first, with interest, or that the partner whose parent’s provided the deposit will get a bigger percentage of the equity. The important point is that if the options on how to give or lend the deposit are explored and the options of how the couple will own a house are carefully considered and recorded there is far less chance of the family falling out with their son or daughter or their in-laws.

Contact us

If you would like to ask any questions about pre-nup or cohabitation agreements, including what we would charge for them (we can normally do it for a fixed fee) please contact me on 07969211544 or at robin@evolvefamilylaw.co.uk.