Relationship breakdown can be a life-altering and stressful experience, especially when there are properties or children involved. This is the case whether or not you are married, although the law governing married and unmarried families is vastly different. The purpose of this page is to give a summary of the law surrounding separation of unmarried couples, focusing on property and children.
The phrase “common law spouse” is often banded around yet is a total myth and in no way reflects the true legal standing of a cohabiting couple. In truth, a couple who live together but are not married do not automatically have financial claims against the other as spouses do; the Matrimonial Causes Act 1973 makes no provision for unmarried partners.
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. 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)
This area of law is complex and we recommend that you seek independent advice according to your own circumstances. Our experienced team is on hand to assist. Please contact Michaela Sargeant or Anthony Vingoe, complete the website enquiry form or call the offices on 01444 235232.
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
Financial provision for children
In respect of child maintenance, 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. 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. We understand that each case has different circumstances and therefore different priorities so it is important to receive accurate advice about the available approaches, options and timings in these areas of law.
A Cohabitation Agreement may be the way to give both parties some protection and peace of mind when entering into a cohabiting relationship. A written Agreement can clarify any issues in relation to ownership of property and other financial obligations in a way that helps to avoid misunderstandings and potentially save distress and complication later on. Our team is equipped to advise on and draft a Cohabitation Agreement suited to your needs. This page is intended for basic information purposes only and should not be considered substitute for obtaining your own independent legal advice. Our experienced team is on hand to advise you about the above matters and more, and tailor advice to your specific circumstances. Please contact Michaela Sargeant or Anthony Vingoe complete our website enquiry form or call our offices on 01444 235232.
Please see our Children information page for details about arrangements for children on breakdown of a relationship.