As fewer cohabiting couples decide to get married, this scenario is becoming more and more common.
In fact, it never ceases to amaze me how many couples enter into committed cohabiting relationships without having any idea as to what their legal rights might be in the event of separation.
I often see clients who are under the mistaken impression that they are in a “common-law marriage” simply because they have been living together for a certain period of time. That is simply not the case.
In another recent blog post, solicitor Katie Machin delved into the legal process for financial stake disputes over shares in jointly owned properties.
Here, I will be covering what happens when unmarried couples separate and the shared property is solely owned by one partner.
If the property is in my partners sole name, what happens when we split up?
This is a common question: “We’re not married and have just split up. The house is in my ex partner’s name; do I have any any rights?”
Unlike marriage, where couples acquire rights, including the right to a fair financial settlement in the event of divorce, couples who choose to live together without being married in fact acquire no additional rights over and above those that they already have. In some situations this can lead to grossly unfair outcomes.
For example, you may have been living with your partner in your family home for twenty years or more and have children together. But unfortunately, if the family home is owned in your partner’s sole name, the mere fact that you have been in a committed relationship, with children, does not provide you with a financial stake in your home.
However, even though the property is held in your partner’s sole name, it may be possible in certain circumstances to establish a financial stake in the property. This is commonly referred to as “an equitable interest”, where your ex partner will own the legal title of the property for the benefit of both of you, under what is known as a “constructive trust”.
The starting point is to look at whether there was an agreement or a “common intention” to share ownership of the equity in the property. This is crucial because unless you can demonstrate that common intention to share, you will not be able to establish an equitable interest in the property.
If there is nothing in writing to show that common intention, try to remember discussions that you and your ex partner had prior to, or around the time of the purchase of the property. Were there any witnesses to those discussions? Was there a good reason why the property was purchased in your ex-partner’s sole name?
You should also think about your financial contributions toward the purchase of the property. Have you made any mortgage contributions, or made regular payments to your ex-partner to enable them to do so? Have you paid for any significant improvements to the property, such as an extension, landscaping to the garden etc?
A common intention to share ownership, coupled with you having acted to your detriment, such as having funded the mortgage payments, may entitle you to claim an equitable interest in the property.
There is a limited exception to these rules if you and your ex partner have been engaged. Even if you cannot demonstrate a common intention to share ownership, if you have made payments toward the mortgage or any other substantial contribution as described above, you may be treated as having acquired an equitable interest in the property.
If I can show I have a financial stake in the property, what happens next?
It depends on whether your ex partner agrees that you have an equitable interest. If so, the next step is to determine the extent of that interest – ie is it 50-50 ownership or unequal shares? Where there have been no discussions or agreement, the property should be deemed to be held in shares that are considered “fair” taking into account the whole course of dealing with the property over the entire relationship.
If matters cannot be agreed, it may be necessary to make an application to court in order to ask the court to declare whether you have a financial stake in your former partners property. The court will make a decision based on evidence. In my experience, it can often be problematic to gather evidence, particularly when trying to remember what discussions took place several years ago and obtaining documentary evidence of financial contributions such as bank statements, invoices, receipts etc.
If satisfied that you have shown sufficient evidence to establish an equitable interest in your ex-partner’s property, the court will then consider the extent of that interest. In the absence of direct evidence of how the equity was intended to be shared, the court can infer or impute the shares that you intended that you would each have.
However, court proceedings can be very expensive and the outcome may not be clear-cut. If you are successful, then you have a reasonable expectation to have the bulk of your legal costs paid by your ex partner. However, if you lose, you will have to pay your ex-partner’s legal costs as well as your own. The stakes are therefore very high. It is for this reason that property disputes between former partners are very often resolved via alternative dispute resolution, such as mediation or a joint meeting in order to resolve matters without the cost and risk of going to court.
I can’t prove ownership – do I have to leave?
There may be other or additional grounds on which a person can claim an interest in, or a right to occupy, a property. (This should not be confused with property ownership.)
These options can provide some security in the short or medium term but if you cannot prove you are an owner of the property, then the sad reality is that if you are requested to leave by the owner, you may have few rights to challenge this and may have to find somewhere else to live.
Some notable exceptions include:
- If there has been domestic abuse, you may be able to secure a court order giving you a right to continue to live in your home (possibly having your ex-partner ordered to leave it) for up to 6 months, with the possibility of an extension of that period. Click here for more information about Injunctions and Emergency Relief.
- Another option, if there are children, may be for you to seek an order requiring your ex-partner to fund the purchase of a home for the children until they turn 18. This is only feasible if your ex-partner has sufficient wealth to do so. Additionally, once the youngest child reaches the age of 18, that property must be returned to your ex-partner and you will have to find somewhere else to live.
I’m thinking about buying a house with my partner – what advice would you give to avoid these kind of property disputes?
The golden rule is to plan in advance. Take early legal advice. If you and your partner are committed to your relationship, then surely there can be no reasonable objections to this.
Decide upon how you intend to own the property. Will it be 50-50? If not, why not? It may be the case for example that your partner is funding the entire deposit. Do you both agree that this should give your partner more valuable stake in the property?
You should not only speak to your conveyancing solicitor about these issues, but more particularly, you should speak to a family lawyer who deals with these types of issue on a daily basis and – crucially – deals with cases where there have been no discussions or consideration given prior to the couple buying the property only to see disaster unfold when the relationship ends.
Good family lawyers will ensure you have well drafted documents that will give you peace of mind in knowing exactly what your rights are and what you would be entitled to, should the relationship end.
If you’d like advice on any issues covered in this blog, you can contact me on 0191 406 5002 or by emailing email@example.com.
Images courtesy of Tierra Mallorca, Soroush Karimi and Kelly Sikkema on Unsplash.