Regardless of how long an unmarried couple have been together, there are no legal protections in place which will grant them automatic entitlement to each other’s property or to obtain financial support. It is entirely possible for one party, if they have no stake in the house and were being supported by the other’s income, to suddenly find themselves in a very vulnerable position. In such a case, a Family Law Solicitor can help cohabiting couples ensure a fair settlement. This includes a share in the family home.
What About Common Law Marriage?
There is a common public misconception that the unmarried/cohabiting couple enjoy similar rights to married couples. This is sometimes referred to as “common law marriage”, “common law husband” or “common law wife”. This is not the case and has no foundation in UK marriage law.
Separating as a Cohabiting Couple
In financial terms, those couples who share a partnership in marriage and subsequently divorce have the benefit of the legal protections of the Matrimonial Causes Act 1973. Same sex couples who marry share protection under UK marriage laws, and those who form a civil partnership enjoy the protections of the Civil Partnership Act 2004. There is no equivalent coherent body of law available to cohabiting couples.
Unless the cohabiting couple previously negotiated a cohabitation agreement with a cohabitation solicitor, there is likely to be confusion and a good deal of negotiation about what both parties consider to be a fair division of any property and wealth that the couple may have accumulated during their relationship.
What Happens to the Family Home?
The main issue for many cohabitants, and any children, is what happens to the family home when the relationship breaks down. This depends on how the property is owned.
If the property is held by both parties jointly as legal co-owners, then the property cannot be sold or transferred without the consent of both parties.
If it is not owned equally, at the time of purchase, a declaration of trust should have been used to specify the respective shares in the property.
There are essentially three ways in which the property could have been held:
- In one person’s name.
- In joint names where the percentage share in the property is specifically detailed.
- Joint owners where there is no specification as to the division of ownership.
The law in this area is complicated and relies on the laws of trust and involves concepts such as:
- Express trust (where the details of ownership are expressly documented such as the TR1 form when the property is originally purchased),
- Constructive trust (often referred to as common intention constructive trust, where the intention of the parties and their shares can be ascertained by conduct or other evidence),
- Resulting trust (such as paying part of the deposit for the property) and;
- Proprietary estoppel (“proprietary” reflects the fact that this is about an interest in property and “estoppel” to restrain or “estop” someone from reneging on a promise).
The UK law in this area can be complicated and relies on evidence gathering to persuade a judge who will decide how much interest each owner has in the property and whether one party should stay living there for the time being (perhaps to bring up children).
Any judge would be interested in looking at the financial contributions both parties have made to the property, what was said when the property was bought or what was the intention of the parties when it was bought. The proceeds of sale will be split accordingly once the judge has reached a decision.
If you or your partner are unable to decide, at the end of your relationship, how ownership of property should be divided or there is a dispute over the ownership of family property, it is important you have a skilled lawyer who is experienced and knowledgeable in this area of law.
How Can You Protect Yourself?
If you are cohabiting and not married and are concerned about protecting yourself, there are certain steps you can take:
- Create a Cohabitation Agreement- this is a legal contract that will outline each person’s rights and responsibilities regarding property and assets in case of separation or dispute. It can clarify how property is owned, how debts are to be managed and how assets will be divided.
- Title Property Jointly or Separately – when you purchase a property, you can decide whether to hold the title in both names (as joint tenants or tenants in common) or only in one person’s name. This decision will determine who has legal ownership and rights to the property, if there is a claim or a breakup.
- Keep Good Records – it is important to maintain detailed records of who contributed to the purchase of any shared property. This can include receipts, bank statements and correspondence showing who paid what and when. This can help in the event of a dispute.
- Consult with a Legal Professional – obtaining legal advice tailored to your situation is crucial. A legal professional can help you draft a cohabitation agreement, advise on property titles and ensure you are taking the right steps to protect your assets. In the event Court proceedings are necessary, it is important that you seek advice from a legal professional who has experience in dealing with Trusts of Land and Appointment of Trustees Act 1986 claims. This is often abbreviated as TOLATA, the statute that gives the court the power to makes orders regulating property ownership.
This content does not constitute legal advice and should not be relied on as such. If you require advice regarding your relationship, please contact [email protected] or call 0333 240 7373.
About The Author
Paul Summerbell is a Senior Associate Solicitor in our Family Law team based in Eastbourne. Paul has over 20 years’ experience supporting clients in all types of complex family cases. He is particularly experienced in advising high net worth clients in ancillary relief proceedings, often with assets of many millions of pounds.