Cohabitation

In the short term, it is always a good idea to try to discuss who is going to stay in the family home, and who is going to move out. The needs of any children should always come first. Look very carefully at budgets when discussing how the mortgage and other bills are going to be paid. However, you should always take legal advice at the very outset to look at the short, medium and long-term picture. There is no “one size fits all” advice – your relationship is different to everyone else’s.

It is important to note however that in the event of divorce proceedings, the court is under a duty to make an order which is fair. A marital home – even if owned in the sole name of one spouse, is usually treated as joint by the court, and ensuring that both spouses and the children are re-housed is viewed as a priority.

Visit our divorce and financial provision pages for more information.

Living together does not give you any legal rights that you did not already have.

The starting point is to check the house deeds and any trust documents to find out who the legal owner is. If the property is jointly owned or there is a trust document which sets out the shares in which you own the property, that may well be conclusive.

However, if the title to the property is registered in the sole name of your ex-partner, things could become rather more difficult. Unlike with married couples, where the court is required to consider an outcome which is fair, there is no such principle with unmarried couples. The general principle is that a property held in one party’s name, belongs to that person.

There are some circumstances in which you may be able to argue that there was a common intention to share ownership, either in writing or through discussions that you have both had, or even inferred by your conduct during the time you lived together. However, it can be difficult to establish this, and in the absence of agreement, the court may need to decide whether you have a financial stake in the property.

If your former partner has said something to you which has led you to believe that the property was jointly owned and you have acted to your detriment and relied upon this, you may be able to argue that you should be entitled to a share in the property.

The best evidence is something in writing which records the agreement between you. However, if this doesn’t exist, you need to try to remember discussions that you have had with each other regarding how you both intended and agreed you would own the property, either prior to purchasing the property or at any stage afterwards.

However, intention is one thing, but you would also need to show that you have acted to your detriment having relied upon this agreement. Usually this would be evidenced by you having made some sort of financial or other money’s worth contribution toward the purchase or improvement of the property.

Contributions typically include evidence of paying towards the mortgage. But can also include contributions that add value to the property such as an extension or substantial renovation, such as a garage conversion or landscaping – i.e something which adds value to the property. Merely cosmetic changes, such as decorating, or buying furniture may not be sufficient to demonstrate a common intention to share ownership unless it also includes the substantial contributions referred to above. If you can prove that there was a common intention to share ownership, the question then is “what is my share?” Often this will be an equal share, but much depends on the circumstances; each case turns on its own facts.

The starting point is to take legal advice. If your lawyer believes that you may be able to establish a claim to share ownership of your ex-partner’s property, the courts have a clear expectation that the couple will try to resolve the dispute without going to court. There are a number of different types of dispute resolution available and dealing with matters in this way can be significantly cheaper than going to court. These include joint meetings, mediation and/or arbitration.

If matters cannot be agreed, then as a last resort, the court can determine the case. The unsuccessful party will usually be ordered to pay the successful party’s legal costs, so the stakes can be high – there is no such thing as a “watertight case”!

If your ex-partner accepts ownership should be shared, then you could either sell the property and split the proceeds of sale or one of you can buy the other out. It depends on what your personal preferences are. Sometimes, at the end of a relationship when feelings are running high and maybe there isn’t a great deal of goodwill, this can cloud common sense judgment. For this reason, it is a good idea to take legal advice; a lawyer will be able to take an objective view of your case, and discuss your prospects of success as well as the options available.

I cannot stress strongly enough how much of a minefield the law is in this area! Anyone considering litigation without taking legal advice should seriously reconsider their actions before it is too late, otherwise the consequences if things were to go wrong (and there is plenty of scope for that to happen!) could be disastrous.

• Cohabitation property disputes: we’re unmarried and have separated. What happens to the house we jointly own?
• We’ve just separated and are not married but our house is in my ex partner’s name. Do I have any rights?
• Cohabitation rights: the common law marriage myth and its wider family impacts
• Property rights for unmarried couples
• Protecting the rights of cohabiting couples in farming families