We are not married - what do I need to know?

My relationship has broken down and we are not married - what do I need to know?

 

The law governing the breakdown of relationships is vastly different depending on whether you are  married or unmarried, and as such the ways in which these two types of situations are treated are also different.  There is no such thing as the “common law spouse”, despite popular belief, and the aim of this blog is to give a summary of things to consider upon the breakdown of an unmarried relationship, particularly when you own a property or have children together.

 

This is no substitute for taking your own legal advice which will help to apply these principles to your own situation and give the best advice for you based on your own circumstances.

 

 

Property

 

The legal framework for dealing with property and unmarried relationship breakdown comes from the Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) and from case law.

 

The presumption with a property held in joint names, unless there is a document stating otherwise, is that you hold in equal shares and the onus would be on the person trying to prove any differently to that.  You should check whether you hold the property as joint tenants (i.e. you both own 100% of the beneficial interest) or tenants in common (i.e. you each own 50% of the beneficial interest) as this could affect the outcome of any dispute.

 

If a property is held in your partner’s sole name there is no presumption that you will be entitled to any share in the equity, regardless of how long you’ve lived together.  It will be up to you to prove that a trust exists and that you therefore should receive a portion of the equity.

 

Under Section 14 TLATA it is possible to apply to court for a declaration as to “the exercise by the trustees of any of their functions or the nature or extent of the beneficiaries’ interests.”  This means the court can declare shares of ownership if there is any doubt or dispute.  The court also has power to order or prevent the sale of a property.  It is important to note that there is no provision given for the court to adjust interests, but just to determine and declare them under the principles of trust law.

 

A TLATA application does not fall under the definition for “family proceedings” so is not governed by the Family Procedure Rules but by the Civil Procedure Rules 1998.  The procedure for application is fairly unique and the case should ideally be dealt with by those proficient in both family and chancery law.

 

Section 15 TLATA sets out some factors the court will consider in determining an application:-

 

  • The intentions of the person(s) who created the trust
  • The purposes for which the property is held
  • The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust
  • The interests of any secured creditors (e.g. mortgage company)

 

The cases of Stack v Dowden (2007) and Jones v Kernott (2008) set out some key principles to help interpret the law of trusts in relation to property and the breakdown of cohabiting relationships.  The starting point is that a property purchased in joint names is owned in equal shares (50/50) unless the title deed or a Declaration of Trust states differently.  This starting point can be displaced in certain circumstances.  The onus is on the person seeking to show that the beneficial ownership differs from the legal ownership.  The presumption is that beneficial ownership follows the legal title, so if a property is held in a sole name it is presumed that the sole beneficiary is the person who legally owns the property and should be proved otherwise by the person seeking to establish their interest.

 

The court will search for what the parties intended, in the light of their conduct, or whether they later formed intentions to change their shares.  The court has to decide what is fair in the ‘whole course of dealing’ between the parties; each case is different and will turn on its own facts.

 

The main objective of the applicant will be to establish that a trust exists.  There are types of trust called resulting and constructive trusts.  These trusts can arise under a number of different circumstances, including contribution to the purchase price, mortgage payments, paying for work to be done on the home or many other potential reasons. 

 

The applicant may be able to establish “proprietary estoppel,” which may result in the court granting rights to use the property or recognise a share).  The applicant must show:-

 

  • They were given an assurance that they would acquire a right over the property;
  • They reasonably relied on the assurance;
  • They acted substantially to their detriment on that assurance; and
  • It would be unconscionable to go back on the assurance

 

This area of law is complex and we recommend that you seek your own independent legal advice to find out more about how it impacts your individual circumstances.

 

 

Children

 

You are free to reach whatever arrangement you want to with your ex-partner regarding care of the children.  There are no parameters or expectations here and you can agree whatever is best for your setup.  It can help to have something written down to record what was agreed so that both parents have a central point of reference, and the best way of doing this would be a Consent Order setting out arrangements for day-to-day care, holidays, special occasions etc.

 

Please see our Children information page on the Family Law section of the website, for more information about when there are disputes over care arrangements for children.

 

There is an expectation of child maintenance to be paid by the non-resident parent.  Maintenance is mainly based on the non-resident parent’s income and the number of nights the children are in their care.  In the majority of cases the Child Maintenance Service has jurisdiction to assess the rate payable.  The reasonable rate of maintenance to pay would be the rate that is produced by the CMS calculator which can be found on the gov.uk website - just type “CMS calculator” into Google.

 

The court has jurisdiction to assess child maintenance only in limited circumstances, set out in s8 Child Support Act 1991.  You can find out more details by looking at the Act itself or by speaking to one of our team.

 

Under Schedule 1 Children Act 1989 applications can be made for:-

 

  • Unsecured or secured periodical payments (on behalf of the child or for the child himself)
  • Lump sums (on behalf of the child or for the child himself)
  • Settlement of property (for the child)
  • Transfer of property (on behalf of the child or for the child himself)

 

This is helpful to be aware of in contrast to marriage or civil partnership breakdown when provision for the children of the family will be made as part of the overall divorce/dissolution settlement.  Schedule 1 can also be used where the CMS does not have jurisdiction, such as when the non-resident parent lives abroad.

 

Each case has different circumstances and priorities, so it is important to receive accurate advice about the available approaches, options and timings in these areas of law.  Our team is experienced in dealing with these areas of law, so please contact us should you wish to discuss your matter further.