Legal rights of unmarried couples

It’s no secret that marriage rates in the UK are declining[1], but this does not mean that families aren’t finding themselves in legal disputes, especially if there are children from the relationship. However, unmarried couples of course do not have the same rights to each other’s assets that married couples do. There is a lot of misinformation around this topic with the general public, so in this blog post we hope to clear up some of the confusion.

Application under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA):

In instances of unmarried couple relationship breakdown, they may wish to sell their property, whether it is in joint or sole names. In order to obtain an Order for sale of the property and a share of the sale proceeds if you are not a legal owner of the property (i.e. you are not on the title deeds as the property being in your joint names or sole name) you will need to establish beneficial interest in the property usually by virtue of your contributions to the property such as the mortgage, utility bills, repairs etc. This may be difficult to establish if, for example, the mortgage was paid solely out of your ex-partner’s bank account. If a beneficial interest is established, the court must determine how best to split the proceeds of sale between the parties.

How to protect yourself?

Conveyancing solicitors when advising their client on a purchase of a property, especially if there is an uneven contribution towards the deposit or purchase price, will always advise that a declaration of trust is sensible. This document sets out the financial entitlement of the parties if the property is ever sold, for example, if there were ever a relationship breakdown. This can either be proportionate to the contribution to the property or 50/50 as long as it is agreed by the parties, recorded in writing via a declaration of trust, and signed by both parties. Declarations of trust can still be disputed through civil litigation, however it is still strong evidence in your favour of the intentions of the parties from the outset.

This is especially important for unmarried couples, as they do not have the immediate rights that married couples have upon breakdown of the relationship unlike married couples.

Schedule 1 of Children Act 1989

The main three ways the court deals with unmarried couples’ disputes under the Children Act 1989: -

• Periodical Payments
• Lump sums
• Property transfers

This section of legislation can provide financial provision from your ex-partner to be paid to you in your capacity as an unmarried co-parent of your shared children. Applications under the Children Act 1989 are largely determined by an assessment of “needs” – i.e., what you need to be able to provide financially for the children that you don’t already have from your own independent resources.

In applications for property transfers, most commonly, the former family home will be settled on trust until the child reaches a certain age, such as 18 or 21, or the child’s independence from the property. After any one of these ‘trigger points’, the property on trust will then revert back to the party that transferred it. The trigger points have to be agreed by the parties. The property transfer order for the settlement can be made out to the applicant for the benefit of the child. Alternatively, the order may provide for an outright transfer of property (in legal title, i.e. “in their name”) to the applicant for the child's benefit.

Only one settlement or transfer property order can be made against the same person in respect of the same child, although there can be 'roll over' provisions (e.g. allowing for a house move during the course of the settlement).

If you require any assistance in a dispute between your ex-partner in relation to children or finances, and wish to book in for an initial consultation to discuss your situation, our family solicitors are based in Wolverhampton, Cradley Heath and Sutton Coldfield serve clients across the West Midlands. For all new enquiries, please call 01902 328 365 or complete our online enquiry form and a member of our team will respond.

[1] https://www.russell-cooke.co.uk/news-and-insights/news/uk-marriages-predicted-to-decline-to-historic-lows-by-2050