1. If I buy a property in the name of my partner, am I entitled to any interest in the property?
If a property is purchased in your partner’s name but you have contributed towards the purchase price, and there is nothing to show that you intend to give up your interest in the property, then it is presumed that you intend to keep the interest (known as “beneficial interest”) and your partner is holding your interest in the property on trust for you. Unless this presumption is rebutted, you would be a “beneficial owner” of the flat even though you are not a registered legal owner. In the situation where the purchase price is paid solely by you, you may even be the sole beneficial owner of the property.
For more details, please visit Properties Arrangements > Purchasing property together > Overview .
2. My partner and I decided to live together. The flat was bought in his/her name. He/She paid the down payment and the monthly mortgage, and I am responsible for all household expenses and improvement works of the flat. Do I have any entitlement to the flat?
If it is shown that you and your partner had an intention (whether express, implied or presumed) as to how the flat was to be owned, then generally the intention would prevail. But if no such intention can be shown, then whether you have any interest in the flat would depend on whether the circumstances have given rise to a “constructive trust” in your favour. The principle is that if the flat is held in your partner’s name in circumstances where it is fair and just that you should have a share in the flat, your partner is compelled to hold your share on a “constructive trust” for you. The issue is whether you have done “enough” to justify an equitable claim.
If you want to know more, you may refer to Properties Arrangements > Purchasing property together > Overview .
3. My husband and I have both paid for the purchase price of our home. The flat is registered in my name only. Is my husband an owner of the flat as well? If so, how would our shares of the flat be worked out?
If you and your husband have contributed towards the purchase price of the flat, both of you are co-owners of the flat. Even though your husband is not a registered legal owner, he would be a beneficial owner of the flat.
As to how your shares of the flat are worked out, it would depend on the respective contributions of you and your husband towards the purchase price. If both of you have contributed equally towards the purchase price, both of you are presumed to own the flat equally as “joint tenants”. Joint tenants are subject to the “right of survivorship”, which stipulates that upon the death of an owner, his/her interest will automatically pass to and shared equally by the surviving owners.
On the other hand, if the contributions of you and your husband are unequal, then it is presumed that both of you own the flat as “tenants in common”, with each owning a share proportionate to the amount of your contributions. For example, if your husband has contributed one-third and you two-thirds of the purchase price, your husband and you will own respectively one-third and two-thirds of the flat as tenants in common. Tenants in common are not subject to the “right of survivorship”, and the interest of any owner who dies will pass under his/her will (or under the law of intestacy, if the owner dies without a will).
The presumptions of “joint tenants” and “tenants in common” can be rebutted by evidence that you and your husband intended to hold as joint tenants despite unequal contributions, or that both of you intended to own as tenants in common despite equal contributions.
For further explanations, please refer to Properties Arrangements > Purchasing property together > Co-ownership , Joint tenancy and Tenancy in common . For divorce scenarios, please refer to Q4.
4. If a married couple ended up in divorce, how would the court divide up their interests in the matrimonial property?
This is a complicated issue.
When a married couple undergoes a divorce, the division of their matrimonial property does not necessarily follow from their respective contributions towards the purchase price of the property. The power of the court in this regard is governed by the Matrimonial Proceedings and Property Ordinance . Generally speaking, the court would take into consideration the conduct of the parties and all the circumstances of the case, such as the financial resources, financial needs and age of each of the parties, the contribution of each party to the welfare of the family, the standard of living enjoyed by the family before the breakdown of the marriage, and the duration of the marriage. The ultimate goal is to achieve fairness in the distribution of the couple’s assets, which is not necessarily a strict 50/50 division.
If you want to know more on the division of matrimonial property upon divorce, you may go to Properties Arrangements > Purchasing property together > Division of assets following a divorce .
5. I am living with my partner in a flat which we bought together. I want to break up with him/her. I want to know if my interest in the flat is protected by legislations in Hong Kong.
Parties to co-habitation who are not married are not subject to the Matrimonial Proceedings and Property Ordinance. Their claims to any property bought by them are generally in accordance with their respective contributions to the purchase price of the property. Sometimes non-monetary contributions are also taken into account.
For more details, please refer to Q1 and Q2 above, and Properties Arrangements > Purchasing property together > Other scenarios .