Many couples live together without getting married or forming a civil partnership. Unfortunately, of those couples, a large number do not realise that there is a lack of legal protection for them in the event one partner dies or their relationship comes to an end. Living together without being married or being in a civil partnership means you do not have many rights around finances, property and children.
If your relationship breaks down, then neither partner has an interest in any asset owned solely by the other unless this is provided for by way of cohabitation agreement or declaration of trust.
Most cohabitation disputes arise when an unmarried couple who have been living together reach the end of their relationship and they cannot agree what happens to the property. If the property is jointly owned, then usually this means that both parties are entitled to an equal share in the property. The difficulty usually arises where the property is owned solely by one of the partners.
This area of law is governed by trust and property laws, primarily Trusts of Land and Appointment of Trustees Act 1996. Claims can also be made where there are children under Schedule 1 Children Act 1989.
Jointly Owned Property
Jointly owned property can be held in one of two ways: joint tenants or tenants in common.
If you are joint tenants, this means you each own all of the property, and your shares are not separate. If one partner died, the property would transfer to the surviving partner. If the relationship breaks down, then you are each entitled to a half share. This is regardless of any contribution made (e.g. one partner has paid more than the other towards the mortgage).
If you are tenants in common, this means that your shares in the property are separate. The shares can be equal or unequal. Each partner can leave their share in a Will to a third party. If one partner dies, then the surviving partner will share the property with the person named in the other’s Will. If the relationship breaks down, you are entitled to your share whether that is half or some other share previously agreed.
Property Owned By One Of The Partners
You can live with your partner in their property for a number of years, and contribute financially to the household, but still be asked to leave when your relationship ends. In some cases, you may have acquired a beneficial interest ownership but unless you have an express declaration of trust or a cohabitation agreement this may be difficult to prove in court.
The law that governs cohabitants’ rights is complex. If you can keep any disputes out of court it is usually better because it avoids the cost, delay and uncertainty of court proceedings. You may wish to consider mediation or other form of NCDR in the first instance.
I've had a couple of previous solicitors to deal with my case but unfortunately it didn't workout. The gods must be shining on me because I had the good fortune to meet Nicola Starbuck at Thomas Flavell & Sons. Nicola has been simply incredible with my case. She has kept me informed every step of the way and given me the best advice to get my outcome. I didn't once have to contact Nicola for an update. She handled it all with great efficiency. She a credit to this practice. If you are in need of a great solicitor, now you know. Don't mess about......
Frequently Asked Questions
Our Family team offers friendly, jargon-free advice on all areas of divorce and family law. We've also added some frequently asked questions here which may help you in learning more about your situation.
A Declaration of Trust is a legal document which relates to a specific property and sets out how the parties’ respective beneficial interests are held.
Under English law those holding legal title of property (the name of the owner on the registration documents) may not be the same as the people holding the beneficial (the financial) interest. For example, if you buy a property with another person and contribute unequal shares towards the deposit or pay different amounts towards the mortgage, the beneficial interest may not be the same for both of you.
A Declaration of Trust protects everyone’s interest in the property ensuring that each party gets what they are entitled to in the event of a relationship breakdown or if the property is sold.
A Declaration of Trust is legally binding provided that it has been prepared correctly.
It is important to note that where a Declaration of Trust is made between parties who live together who later get married then the Declaration of Trust will be superseded by the Matrimonial Causes Act 1973. This means that in the event of a divorce and a dispute as to how the net sale proceeds of the property should be divided, the court will take the Declaration of Trust into account as an indicator of the parties’ intentions, but the court is not obliged to honour the terms as set out in the Declaration. Where a Declaration of Trust has been made and the parties later decide to get married then they should consider replacing the Declaration of Trust with a Prenuptial or Postnuptial Agreement at the relevant time.
Unfortunately, there is no such thing as ‘common law spouse’. If you are not married to your partner, you may have very little legal rights if they die or if your relationship ends. If your home belongs to your partner, you may not be entitled to a share in it even if you have lived there for a long time. You will need a formal agreement in place to protect you.
Couples who live together but do not get married or enter into a civil partnership have very little, if any, legal rights in the event of the other person’s death or if the relationship breaks down. You will need to protect your interest in any assets, or make provision for your partner, by way of a Living Together Agreement (cohabitation agreement).
If you have a Declaration of Trust then your share in the property, even if it is owned by your partner, will be properly recorded. Legally, you are entitled to a share specified in the Declaration of Trust.
If you do not have a Declaration of Trust, then you may have an interest in your partner’s home (e.g. where you can show that you made mortgage payments or contributed to home improvements).
