Some couples believe that they will become “common-law husband and wife" by virtue of living together for a number of years. Unfortunately, this is a myth and at no stage during a relationship do unmarried couples become common-law husband and wife.
Financial matters between partners are strictly determined by Property Law and Trusts Law and, if there are children involved, the Children Act 1989. Unmarried couples who live together are referred to as ‘cohabitees’.
On separation from your partner, you would only be entitled to a share in assets that you jointly own or that you can prove you have an interest in under Property or Trusts law principles. This is a very complicated area of law. If you think that you have an interest in a property because you have contributed in some way or a promise has been made to you that you will be entitled to a share, you should seek legal advice.
If the family home is registered in your partners name only, the most important first step to take is to protect your possible interest by registering a Restriction to stop your partner selling the property without your knowledge.
If the property is held in your joint names, your share of the property will depend upon whether you hold the property as Joint Tenants or Tenants in Common. If you are Joint Tenants, you both hold the property equally i.e. in 50/50 shares. If you hold the property as Tenants in Common, you may hold it in unequal shares and a Declaration of Trust should have been prepared when the conveyancing transaction was completed. If there is no Declaration of Trust, your Solicitor will have to look at the parties contributions, mortgage repayments and prepare a detailed calculation as to your interest in the property.
If the reason you bought the property has now come to an end (i.e. you purchased it for a family home) then you can apply to the Court for an Order that the property be sold.
You cannot obtain financial support for yourself from your partner, even if they have supported you financially over the years.
With regard to any children, the parent with whom the children live can apply to the Child Support Agency for child maintenance or the parents can agree between them that the non-resident parent will pay a fixed amount each month for child maintenance.
The partner with care of the children may be in a position to make an application to the Court under the Children Act to provide housing for them and the children until the children have reached their majority. However, they will not establish a legal interest in the property this way. When the children reach majority, the property will revert to the person who owns it. It is also possible to make an application under Schedule 1 of the Children Act for lump sums or other financial orders and this would depend on all of the circumstances.
Expensive litigation can be avoided if the parties take legal advice prior to purchasing a property, sign a Declaration of Trust and also consider entering into a cohabitation agreement prior to living together.
We can help you by:
- Advising you on purchasing a property together and drafting a Declaration of Trust
- Helping you to gather the information and evidence needed to consider your position
- Advising you on trusts law and property law principles after separation
- Advising you on whether you are likely to have a claim based on the evidence available
- Applying to the Land Registry to put a restriction on your partner’s property
- Applying for an Order for sale of the property and/or a declaration of your share in the property, if appropriate
- Advising you of the likely legal costs involved