Unmarried Couples and Relationship Breakdown

Many couples are now preferring to live together in long-term relationships without ever being married. Unlike married couples or those in civil partnerships, cohabiting couples do not have a specific legal status in England and Wales. As a result, cohabiting couples do not automatically have the same legal rights and protections as do married couples in the event of a relationship breakdown. This remains the case even if they have lived together for a long time or have had children together.

If you are living with a partner who owns the house or you are planning to do so, it is essential to understand your legal position and the steps you can take to protect your future security.

This article explores some of the key legal issues that unmarried couples should be aware of and the steps that unmarried couples can take to protect themselves.

What are the property rights of cohabiting couples?

Property rights for cohabitating couples can be complex and depend on various factors such as how the property is owned and whether there are any legal agreements in place. The starting position is that the person or persons named on the title deeds is or are the legal owner. If both partners own the property jointly, they will hold the property as either joint tenants or tenants in common.

If the property is held as joint tenants, this means that the couple will be considered joint owners which in practice means they will have an equal share in the property. Should a cohabitating couple decide to separate, the equity in the property would therefore be divided equally between them. As joint tenants, your share in the property would automatically pass to the surviving co-owner upon your death (and vice versa) in accordance with the rule of survivorship, irrespective of the terms of the deceased co-owner’s Will.

Where a couple jointly owns a property as tenants in common, they will each own a distinct share of the property. These shares do not have to be equal and can instead reflect the couple’s respective contributions or preferences. As such, if a cohabiting couple were to separate, each party would walk away with their defined share of the property. Unlike joint tenants, tenants in common can leave their individual shares to their chosen beneficiaries in accordance with their Will. If the deceased did not have a Will, their share would pass according to the rules of intestacy. Some couples may choose to record their respective beneficial interests in an agreement such as a Declaration of Trust or a cohabitation agreement so that their intentions are clearly set out at the point of purchase.

On the other end of the spectrum, if a property is owned solely by one partner, that individual generally has the legal ownership of whole property. If you are not married, you have no automatic legal right to your partner’s property or other assets, no matter how long you have been together. In certain circumstances, however, the other partner may be able to establish a beneficial interest in the property on the basis that a trust has arisen, even if the relationship later breaks down. A trust may arise where a partner has directly contributed towards the property purchase, towards renovation works or towards the monthly capital mortgage repayments. Whether you can establish a right to a share of the property in these circumstances depends on whether you can evidence a common intention (an implied agreement) between you and your partner that you have a financial interest in the property and you have relied on this understanding to your detriment. It is possible to evidence this understanding even if it was not set out clearly in writing, although this will ultimately depend on your specific circumstances.

Most unmarried couples engaged in disputes over property interests must rely upon the provisions of the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996, which deals with trusts of land whether express, implied, resulting or constructive. If litigation becomes necessary in the event of a dispute, the Court may need to decide the extent of the contributing partner’s beneficial interest. By nature, these trusts are uncertain and seeking legal advice at an early stage is advisable. This is a particularly complex area of the law and our specialist team of family lawyers can offer tailored advice and guidance if you find yourself in these circumstances.

What factors do the Court take into account when determining an application under TOLATA 1996?

Section 14 of TOLATA 1996 deals with applications for orders by any person who is a trustee of land or has an interest in property subject to a trust of land.

In determining such an application, section 15 of TOLATA 1996 sets out a list of matters for the Court to consider, which includes the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as their home. Considerations as to the welfare of minor children in TOLATA 1996 proceedings will often turn on the specific facts of the case., including the ages of the children, their educational requirements and whether they remain living in the subject property.

In exercising its discretion on an application for an order for sale, the Court may choose to make a deferred order for sale – i.e. one that is postponed until the happening of a trigger event, such as that the youngest child attains the age of 18 or has left full-time education. The decision in Edwards v Lloyds TSB Bank plc [2004] serves as an example of where the Court made a deferred order for sale having regard to the implications for the children, who remained living in the subject property at the time the order was made.

Ultimately, these cases turn heavily on their facts and it is advisable in such circumstances to seek legal advice at an early stage.

Can unmarried partners get financial support from their former partner after a breakup?

Cohabiting couples have no financial responsibility towards one another if they separate. Therefore, if your relationship ends, you have no legal responsibility to provide your former partner with financial support.

The situation is different where the cohabiting couple have had children together, however. In England and Wales, parents have a financial responsibility towards their children through the government’s scheme, the Child Maintenance Service (CMS). In most cases, the CMS will deal with the issue of child maintenance except where the paying party lives abroad and is working for an employer located outside England and Wales.

Schedule 1 of The Children Act 1989 also provides an avenue for a parent (often the parent with whom the child or children lives) to seek financial provision from the other parent for the benefit of the child or children of the family. Claims made under Schedule 1 can only relate to the needs of the children, not the needs of the parent, save for cases where maintenance can include an amount for childcare costs to enable a claimant parent to return to paid employment.

There are several orders that can be applied for under Schedule 1. The most common claim is for housing provision, either through a capital lump sum payment or a property transfer. The resident parent can also apply for regular payments under Schedule 1 if the CMS cannot deal with child maintenance. This might happen where the non-resident parent lives in a different country outside the jurisdiction of the CMS, or where the non-resident parent is a high earner with a gross income greater than £156,000 per annum (£3,000 per week), in which case the resident parent may claim ‘top up’ child maintenance. Support under a Schedule 1 claim will generally only last until a child reaches 18 years of age.

Provided that there are sufficient funds, a claim can be made by one parent under Schedule 1 for a property to be made available to them for the benefit of the children during their minority. A house can be purchased for, or transferred to, the resident parent, where they are permitted to live with the children until they turn 18 or finish full-time education. Once the children reach majority and the trust comes to an end, the property then reverts to the other parent or it is sold with the proportion of equity contributed by the non-resident parent being paid back to them as may be the case.

The Court will consider a range of factors when deciding a Schedule 1 claim. These include the income, assets and earning capacity of each parent, any financial commitments the parents have, the financial needs of the child, the standard of living enjoyed by the child before their parents’ separation, any specific educational needs of the child, and any physical or mental disability of the child.

What steps can be taken to protect yourself as a cohabiting partner?

One of the most effective ways to safeguard your rights when moving into a property with your partner is to have a cohabitation agreement drawn up by solicitors. This is a legal document which outlines the financial responsibilities and property rights of both parties, specifying what will happen to the home and other assets in case the relationship ends. A cohabitation agreement can also set out the living arrangements and financial provision to be made for the parties’ children if the relationship ends. At Pinney Talfourd, we have specialist family lawyers who regularly advise on cohabitation agreements and disputes between separating partners. If you wish to discuss the suitability of a cohabitation agreement in your case, please do get in touch with our team and we will be happy to advise you.

We would also encourage cohabiting couples to ensure they have valid Wills in place. As cohabiting partners do not automatically inherit each other’s property, a Will can make sure your wishes are honoured. This will ensure that any assets, including property, go to the intended beneficiaries, protecting your interests in the event of death. Our specialist private client department can assist you and your partner in preparing Wills that accurately reflect your wishes.