Unmarried Couples – Property Disputes

If you are separating and you are not married, the law on deciding a financial settlement is very different to the law that applies to married couples. There is no such thing as “common law husband and wife” that will give you the same rights as a married couple.

Property law decides what each of you is entitled to

If the property is in joint names, the presumption is that you are entitled to the shares as set out in the Title Deeds or a Declaration of Trust.

If you own as joint tenants (sometimes called ‘beneficial joint tenants’):

• you have equal rights to the whole property
• the property automatically goes to the other owner if you die
• you cannot pass on your ownership of the property in your will
• if you separate, you will each be entitled to a half share in the property regardless of how much you paid into the property

If you own as tenants in common:

• you can own different shares of the property, and a Declaration of Trust will set out what share each of you is entitled to. If there is no Declaration of Trust, you are presumed to own equal shares
• the property does not automatically go to the other owner if you die
• you can pass on your share of the property in your will
• if you separate, you will each be entitled to the share of the property as set out in the Transfer Deed or Declaration of Trust

If the property is in one of your sole names, the presumption is that the owner is entitled to the entire property and the other person has no claim unless they can show:

• There was a common intention shared by you both as to your joint ownership of the property; you relied on that common intention to your detriment; and it would now be unconscionable for you to be denied an interest in the property; and/or
• You were promised, induced, encouraged, or led to believe that you would have an interest in the property; in reliance on that promise, you acted to your detriment, and it would now be unconscionable for you to be denied an interest in the property.

Unless one of you can afford to buy out the other, the property will usually have to be sold when you separate. If you cannot agree on a sale, one of you will need to apply to the Court for an Order for sale under the Trusts of Land and Appointment of Trustees Act 1996 and, if you cannot agree on what share each of you is entitled to, one of you can apply, under the same Act, for a declaration from the Court, asking them to state what share of the property each of you are entitled to.

Financial claim under Schedule 1 Children Act 1989

If there are children, the parent with care of the children may have a claim to either stay in the property whilst the children are still dependent, or to receive a large enough share from the sale proceeds to rehouse themselves and the children. Once the children stop being dependent, the property will need to be sold and the proceeds shared in accordance with the Title Deeds, as described above.