What are the legal rights of unmarried couples

In England and Wales regardless of how long you live together as matters currently stand there is no automatic legal framework upon which you can rely when issues arise upon separation. The ‘Common-Law’ marriage is a myth. Whilst this area has long been recognised as in need of reform that reform has been slow to materialise.

Income

A former partner cannot make a claim for the equivalent of spousal maintenance/periodical payments in a divorce no matter how great the difference in the respective incomes of the parties and even if they have been maintained financially by that person for years.

Unless the other parent is an extremely high earner child maintenance is dealt with either by agreement or through the Child Maintenance Service in the usual way.

Capital such as savings and investments

A former partner cannot make a claim to the other person’s own savings and investments.

Pensions

A former partner cannot obtain a share of the other person’s pension assets through a pension sharing order. This leaves them vulnerable in retirement.

Property Assets

Joint names cases

When a property is jointly owned and there is no Declaration of Trust evidencing that the property is held in unequal shares, the starting point is that each party is entitled to 50% of the equity in the property.

The TR1 which you signed at the time of the purchase operates as an express declaration of your common intention (what you wanted) at the time.

It is possible for there to be subsequent discussions whether informal or formal that might suggest the parties do not own the property as has been set out in the express declaration. There would however need to be what is described as ‘a common intention’ between the parties that their shares did not accord with the position recorded in the TR1. This can be difficult to evidence as it comes down to one person’s word against the other.

We are often presented with a scenario whereby one party wants to sell the property (usually the party not living there) and the other (usually the party living there) doesn’t. There really is no point whatsoever in the party wanting to sell sending estate agents around without the other person’s consent. This just wastes the estate agent’s time and inflames matters generally. The property cannot be sold without either a court order or both parties consenting to the sale.

If matters cannot be agreed direct then this is the time to seek advice from a local solicitor. A good proportion of these disputes can be settled without the need for court proceedings.

Sole name cases

When a property is in the sole name of one of the parties and there is no Declaration of trust indicating that the property ownership is shared the starting point is that the party named as the owner owns 100%.

It is for the non-owning party in these circumstances to show that they have an equitable interest in the property such that the party with the legal ownership of the property is holding the property on trust for both of them.

A resulting trust can occur for example if the other party contributes to the purchase price in circumstances where it cannot be proven that the advance was a gift.

A constructive trust can occur when the owning party has behaved in such a way that it would be unfair for them to deny the other person a share in the property. For such a
claim to succeed there has to be shown to be a common intention between the parties to share the property. The other person has to have acted to their detriment as a result of this common intention to share the property. Conduct alone for example carrying out works at a property is not enough it has to be shown that this was done because that person thought they had an interest in the property.

Proprietary estoppel occurs when the owning party makes a promise/assurance that leads the other person to believe that they will enjoy a right to the property, the other person relies upon that promise and they suffer in some way as a result with the owning person then denying them what they thought they were getting.

Unlike the position with a jointly owned property the owning party can sell the property and dispose of the proceeds. If this is a concern then the non-owning party should consider obtaining legal advice at an early stage.

A dispute over the ownership of a property between cohabitants is dealt with under the Trusts of Land and Appointment of Trustees Act 1996. These are Civil Proceedings not Family Proceedings. They are expensive and inherently stressful. Court proceedings should be issued as a last resort in the event that direct negotiations/negotiations through solicitors fail. The parties should also attempt to settle matters through Non-Court Dispute Resolution (NCDR) such as via mediation before issuing court proceedings.

Cohabitation Agreement

When a dispute arises between cohabitants over the ownership of a property much rides upon what is described as the ‘common intention’ of the parties regarding ownership. Recollections tend to differ and it can come down to one person’s word against the others. A cohabitation agreement operates as a defence as it clearly records what the parties intended at the time they entered into the agreement. It also means that the parties have that difficult conversation early on so the non-owning party can be in no doubt as to the owning party’s intentions regarding the property.

Schedule 1 of the Children Act 1989

If cohabitants have children together then the court has the power to make orders under the above Act. It is important to note that the court is considering the welfare of the child or children not the parent making the claim although they may obviously benefit indirectly as a result. The obvious candidates for such claims are parents in circumstances where the main carer is in a very significantly less financially secure position than the non-resident parent.

The court can order periodical payments (child maintenance) if the CMS doesn’t have jurisdiction for some reason for example if the parent that the child doesn’t live with has an income that is higher than the CMS limit (£156,000 gross per annum) or if it relates to a claim for educational expenses or expenses connected with a child’s disability.

The court can make an order for a property to be transferred or held in trust for the benefit of a child until for example they reach 18/complete their education. It is important to note however that at that point the property is either transferred back to the owner or is sold and the proceeds go back to the owner. The other parent benefits by being able to live there with the child over their minority, but they do not ultimately benefit by retaining an interest in the property.

The court can also make an order for a lump sum to be paid by one parent to the other for example for the purchase of a vehicle for the family.

If you require any further assistance, or 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 01384 340 526 or complete our online enquiry form and a member of our team will respond.