Cohabitants and Unmarried Families
There are many myths surrounding the rights of unmarried couples, the most common one being the idea of a ‘common law marriage’. The fact of the matter is that, as the law currently stands, unmarried separating couples do not enjoy the same protections as a married couple embarking on a divorce. Unmarried couples do not have the protection of a general legal framework to deal with financial and property matters on the ending of their relationship, in the same way that divorcing couples do.
So as a cohabitant, you cannot make a general financial claim against your ex when your relationship ends. Any rights you have will relate to the ownership of any property you have with your ex. These rights are decided with reference to property and trust law. If there are any children of your relationship, there may be financial claims that you can make on their behalf.
If you and your ex jointly own the family home, it is likely that you entered into a ‘declaration of trust’ at the time you purchased the property. This declaration will set out how you and your ex intended to share the equity in the house, whether 50/50 or perhaps in some other proportions. In most cases, this declaration will be conclusive evidence of your share in the property.
Sometimes the arrangements in relation to property ownership where a couple are unmarried are less clear-cut. For example, the family home may be registered in the sole name of your ex, but there may have been an intention that you would have a share in the equity. In many cases, this is not formally recorded anywhere. These situations can become very complex both from a factual and legal point of view. If your ex denies that there was ever any agreement that you would share in the equity, you will need to meet the requirements of a ’common intention constructive trust’.
‘Proprietary estoppel’ is another means by which property rights may be affected or created when you separate as an unmarried couple. Sometimes proprietary estoppel is relied on independently or in the alternative to the constructive trust position, in the context of a home ownership dispute between former cohabitees.
As with all family law disputes, Court action is always a last resort. However should all suitable non-Court methods of resolution be exhausted, any Court action would need to be instigated pursuant to the Trusts of Land and Appointment of Trustees Act 1996. In broad terms, the Court has the power when an application is made under the Act, to do the following:-
- Determine whether a jointly owned property should be sold;
- Quantify the respective ‘beneficial shares’ that each co-owner or cohabitee is entitled to and make a declaration regarding the sharing of the equity;
- Determine whether a former cohabitee has a beneficial interest in the property, usually where that cohabitee’s name is not on the legal title and the legal owner is disputing the claim.
We work closely with our colleagues in our Real Estate and Dispute Resolution Teams, together with Counsel specialising in this area, to ensure you receive the best possible advice in these often complex cases, to help you navigate your separation as quickly and as cost-effectively as possible.
For more information or advice on Cohabitants and Unmarried Families Disputes please contact us.
