Cohabitation & Unmarried Couple Lawyers

When a married couple separates, the financial claims that they have against one another are wide-reaching. A specific statute (the Matrimonial Causes Act 1973) encompasses those claims and the factors that the court must take into account when considering a financial settlement.

By contrast, the claims that former cohabitees have against one another are limited. There is no specific statute dedicated to dealing with claims that arise following the breakdown of cohabiting relationships. Former cohabitees are generally restricted to claims for child maintenance (if there are any relevant children) and claims in respect of any jointly owned or jointly occupied property.

The civil court can deal with disputes between couples who either own a property together or have lived together in a property that is held in one person’s name. Such claims are dealt with under Section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA).

This gives the court the power to:

• In the case of a jointly owned property, determine the co-owners’ respective shares in the property. For example, a property may be held by two individuals on a 50/50 basis, but one party may say that they have made a higher financial contribution to the property and therefore their interest should be higher than 50%.
• In the case of a property held in one party’s name, determine whether another party has acquired a beneficial interest. For example, a party may argue that they have no legal interest in a property but have acquired a beneficial interest because they have made significant financial contributions to the purchase price or a renovation.
• Determining whether a property should be sold.

If there is a dispute between joint owners as to their respective shares in a property, the starting point will be for the couple to review the transfer document that was signed at the time of purchase. If Section 10 of the transfer document is completed and confirms how the couple intended to hold the property, this will be treated by the court as an express declaration of trust and ‘conclusive evidence’ in respect of the ownership position. In such circumstances, arguments about financial contributions are irrelevant. The court can only set aside an express declaration of trust if there is evidence of fraud, undue influence, duress or mistake.

In joint ownership cases that don’t feature an express declaration of trust — or in cases where the property is held in one person’s name only — the role of the court is to determine whether an ‘implied trust’ has arisen in favour of the individual who is seeking to assert an interest (or a higher interest) in the property. In such circumstances, the court will examine the parties’ respective financial contributions to a property and their intentions at the time of purchase and throughout the relationship. This is an extremely complex area of law.

As above, the court also has the power to consider whether a property should be sold. An order for sale can arise after the court has dealt with a dispute as to the shares in a property. Equally, the court can make an order for sale when there is no dispute about the shares in a property but where one party is obstructing a sale or is refusing to buy the other out of their interest.

TOLATA cases that involve a dispute about property interests are notoriously difficult. The statute was not designed to cater for cohabiting couples. TOLATA claims are dealt with in the civil court (as opposed to the family court), which means that there are significant cost consequences for running an unsuccessful claim. The available case law is limited and highly fact-specific, which makes it difficult to assess the strength of a claim prior to issuing proceedings.

If you have a potential TOLATA claim, it’s strongly advised that you seek specialist legal advice.

If a property is owned by one party, it’s possible that the other may be able to make a claim under the law of trusts.

A resulting trust can occur when:

• One party contributes towards the purchase price of a property in the other’s name.
• One party transfers property to another but receives nothing in return.

A constructive trust can occur where:

• There has been an agreement to share ownership of the property — either directly, by way of an express agreement, or indirectly, by making financial contributions (such as to the mortgage or purchase price).
• One party is reliant upon this agreement.

In such scenarios a cohabitation agreement should be entered into to ensure that the party who is financially contributing to the property but does not legally own it is protected in the event that the parties separate.

There are some circumstances where it’s possible to seek a share of a property that’s owned entirely by your former partner. Each set of circumstances is unique and it’s always sensible to take legal advice as this is a complex area of law. 

This is a common situation. When you’re purchasing a property with a partner, it’s sensible to sit down and talk — preferably with the benefit of independent legal advice — about how you intend to own the property and how you’ll share the expenses. 

A cohabitation agreement can help to provide clarity. Such an agreement (or a declaration of trust) is certainly advisable if contributions are to be unequal and you wouldn’t want to share a property equally in the future. 

While there are several different ways in which joint owners of a property can potentially achieve an unequal share of a jointly-owned property following separation, this can be challenging as often the Land Registry title document is definitive. 

Our experienced lawyers can give you a view on your circumstances and advise you as to the options available. 

Firstly, it’s important to clarify that the money will be a gift rather than a loan. If it’s a loan, it’s sensible to have clear loan documentation in place. If it’s a gift, it’s important to think about how the property is owned, particularly if you’re buying with a partner. If that relationship breaks down, would you want your partner to benefit from the gift too? 

Taking early legal advice on property ownership and considering a declaration of trust or cohabitation agreement can be a sensible way forward. 

When a cohabiting couple separates, there’s no need to formalise the separation as a married couple may do following a divorce. 

If the couple agrees on how to separate their finances or the arrangements for children, there’s no need to formalise an agreement. However, a couple may wish to take independent legal advice to understand their rights and responsibilities. Legal advice will be important if there’s a dispute as to child arrangements or how financial matters should be settled following separation. 

The answer to this will depend on the individual circumstances of the couple. In most cases, the deeds/Land Registry title will be definitive. However, there are some circumstances where a direct contribution towards a property or an agreement/promise can give rise to an interest in a property. 

This is a complex area of the law and it’s recommended to seek specialist legal advice.

Following a relationship breakdown, there are significant differences between the rights available to married and unmarried couples. 

Following divorce, married couples (and those in a civil partnership) have a broad variety of financial claims they can make again the other. This includes claims against property, other assets, pensions and also a claim for maintenance. The Family Court has wide discretion to make an order as part of divorce proceedings which is fair and meets the needs of the couple. 

On the other hand, for couples who aren’t married or in a civil partnership, there’s no formal separation process and the claims available to achieve a fair outcome following separation are limited. Claims are generally only available for couples if there’s a dispute regarding the ownership of property or in respect of financial provision for children.

Not all couples who separate will need a separation agreement. They can used — following separation — for couples who are married or in a civil partnership who aren’t yet able or willing to divorce. They can also be useful for couples who separate who’ve never been married or in a civil partnership. 

One advantage of a separation agreement is that it clearly sets out what has been agreed regarding your finances, which can be helpful if there’s a dispute in the future. A specialist family lawyer can advise you on whether it’s sensible in your specific circumstances. 

If there are no children, former partners who are unmarried or not in a civil partnership will have no requirement to financially support the other following separation. 

If there are children, child maintenance may be payable by the non-resident parent. For most people, this will be in accordance with the Government’s child maintenance calculator. There are some circumstances when additional financial provision can be sought under Schedule 1 of the Children Act 1989. However, this is financial provision for the benefit of the child rather than for the partner.

Despite the terms ‘common law wife’ and ‘common law husband’ being used widely, these terms have no legal implications. 

Under the law, you’re either married or in a civil partnership or unmarried/cohabitants. 

In some circumstances, it’s possible to apply to court for financial provision for a child over and above the level of child maintenance assessed by the child maintenance service (CMS).

Prior to applying to court, it’s a good idea to take legal advice to understand the merits of an application and consider non-court dispute resolution with your former partner. 

Under Schedule 1 of the Children Act, it may be possible to apply for ‘top up’ maintenance, lump sum provision (e.g., for a car) or housing provision. 

Your first step would be to contact the child maintenance service (CMS) and pursue maintenance through them. Once the CMS process — and its mandatory reconsideration process — has been exhausted, you may wish to consider an appeal to the Social Security and Child Support Tribunal.