Unmarried Couples Guidance
This section deals with the law relating to Unmarried Couples particularly their property rights. The law in this area is very complicated. If the partners in a relationship are not married but live together as husband and wife their property rights in respect of jointly owned property are covered by English property law. Much of the relevant law is "common law based". It arises from the law that has developed over the years as a result of case decisions in the High Court, the Court of Appeal and the House of Lords.
UNMARRIED COUPLES
It is a common misunderstanding that cohabiting couples who have lived together for a number of years have the same legal rights as married couples. There is no such thing as a "common law husband and wife". A couple who have lived together do not enjoy the same rights as a married couple. So a person who lives with someone for 25 years or more, may well have less rights than a person who has been married for a very short period of time, say 5 years or less.
EXAMPLE: a woman who is in a relationship gives up her own career to raise children from the relationship. Had the woman been married, she may have been entitled to claim maintenance for herself as well as her children. If she never married, she could not make any such claim.
PROPERTY RIGHTS
Property rights are based on usual property law principles, eg if a property is in a person's name then they will usually be deemed to own it. However, the law has from time to time found a way around these so that a house bought in one partner's name might still be claimed upon by the other partner who has contributed to the price, freed the "owner" to pay the mortgage by taking on household bills, been promised or lead to believe that the house is or will be partly theirs or otherwise acted in such a way that it would be unfair to deprive them of a share.
In particular, a series of cases in the 1970's established that a "common law wife" could acquire property rights by working to improve the house and garden and by bearing and bringing up the children of the "common law husband". Parliament has built on these ideas with various statutes aimed at protecting the rights of and regulating the financial relationships between unmarried cohabitees.
We outline here some of the more important Acts of Parliament which regulate the position between unmarried couples both in respect of their conduct towards each other and their property rights.
RIGHTS WHICH APPLY TO ALL COUPLES
All couples living together as husband and wife and, arguably, gay couples have other rights under Part IV of the Family Law Act 1996. They have a right not to be evicted from the matrimonial home by the partner who owns it without a court order and to be given notice if that partner is faced with eviction proceedings because of rent or mortgage arrears. These rights need to be protected by registration at the Land Registry or the Land Charges Registry.
VIOLENCE
They also have the right to go to court and seek an injunction if their partner subjects them to violence. The injunction will always order the other partner not to assault, molest or interfere with them but may also exclude the other partner from the home or even from a specified radius of the home. An injunction can carry with it a power of arrest enabling the police to intervene if the court order is broken.
CHILDREN
If there are children, a father who has obtained parental responsibility (the rights and duties of a parent) by agreement with the mother or by court order for unmarried couples or by being married to the mother in the case of married couples, has a right to contact with his children and a right to be consulted about major events or decisions relating to the children.
CONTACT
The exercise of these rights can be difficult if, for example, the father has been excluded from the family home or has been ordered not to contact the mother. If a father is faced with an application by a mother for an injunction under the Family Law Act, this sort of problem needs to be considered and the Judge hearing the application will need to consider whether provision should be made in the order to allow contact to continue without placing the father in breach of the injunction order itself.
COMPLEX AREA
The law on these subjects is complex. Public funding (the new name for Legal Aid) is frequently available to couples who have disputes over children, property and money. We strongly recommend that you see a solicitor to obtain advice and to find out whether public funding is available for matters such as this.
JOINTLY OWNED PROPERTY
The English legal system has never had any difficulty in recognising the concept of joint ownership. However, where property of any kind (real, which is to say land, or personal, which is to say any other kind of property) is owned jointly by two or more people it is deemed to be held on "trust for sale". The owners hold the legal estate in the property on trust for themselves and the presumption is that they intend to sell the property and distribute the proceeds of sale in accordance with the trust.
EXAMPLE
If the property is owned in the joint names of A and B the arrangement looks like this: Legal Estate owned by A and B on trust to sell and to divide the money between the equitable or beneficial owners who are also A and B
ENFORCING A TRUST FOR SALE
Section 30 of the Law of Property Act 1925 allows the beneficial owners to apply to the court for an order to put the trust into effect by ordering a sale of the property and a division of the proceeds. In the case of houses the shares of the parties will usually be clearly defined because the solicitor who acts for the owners at the time when they buy ought to advise on joint ownership and its effects and will usually have prepared a document setting out what the shares are (usually 50:50). The court might decline to order a sale of the property if the purpose for which the trust was created still continues. It is likely that where the parties have children, the court will declare that part of the purpose of the trust was to provide a home for the children and that until the children reach the age of 17 or, if later, leave full time eduction, the property should not be sold.
PERSONAL PROPERTY
For personal property such as a joint bank account, valuable items, shares or anything else, which is not land, the parties may not have agreed expressly what the shares are to be. The court is then faced with the task of identifying what the intention must have been by reference to:
• What was said and done from which the court can derive an often theoretical idea of what the parties intended
• What each of the parties put into the property which will be reflected in what comes back to them
• Any express agreement such as the sort of document which a solicitor might prepare at the time of setting up the arrangement or even what the parties said to each other.
EXAMPLE
For example, the bank account may have been set up in the name of one party only but on the clear understanding that the other party would be covering household expenses and bills for both so that the account holder could use all of his or her income to create a nest egg. The bill payer would be recognised as having an interest in the saver's bank account because he helped to provide the funds which went into it albeit indirectly or because it was stated that the money in the account was to be joint property or because he or she was misled into going along with the arrangement in anticipation of seeing some benefit.
REAL PROPERTY (LAND OR HOUSES)
The relevance of Section 30 to houses has disappeared to some extent since the introduction of the Trusts of Land and Appointment of Trustees Act 1996. The Act does little which is new but but codifies the immense amount of case law which arose out of disputes about jointly owned houses and creates an easy to understand framework through which such matters can be placed before the court and resolved.
AN EXAMPLE FOR THE UNMARRIED AND SEPARATING COUPLE
Because the number of property problems arising from a relationship breakdown is so great it is not possible to give a complete answer to every question, which you might have. Instead we have prepared the following example based, in part, on cases in which we have been involved as a guide to the way in which the court may approach a typical case under the Trusts of Land and Appointment of Trustees Act 1996.
THE JOINTLY OWNED HOUSE IN ONE PERSON'S NAME
The law is relatively complex and we would recommend that if you have a problem of this kind you consult a solicitor. By way of example however we set out the sort of case in which the Act might be used.
CASE SCENARIO PROBLEM
A and B meet and a relationship starts. Both work. A has owned a house before but fell into difficulties with the mortgage as a result of which he cannot get a mortgage either alone or jointly with B. B has no bad credit history and can obtain a mortgage easily. They decide to buy a house and live together.
A has £2,000 savings. B has a similar amount and they pool their money to come up with £500 for the legal fees on buying a house and a deposit of £3,500. They buy a house for £70,000 with a mortgage for £66,500. The house is in B's name only because only B can take the mortgage. The mortgage instalments are paid by B at £450 per month but A meets all the bills for gas, electricity, council tax and water rates. A also does work on the house after they move in. He installs a new bathroom and kitchen, redecorates and makes good a number of defects.
After three years the property has risen in value to £90,000. The increase is partly due to A's work and partly due to the rise in the property market. However, the relationship is in difficulty and the couple decide to separate. The house is in B's name and she says that A is not entitled to any part of the £23,500 equity. At the time when they bought B dealt with the solicitors and did not think to mention that in reality A was to be a part owner and that the house was in her name for the sake of convenience only. Accordingly there is no deed showing that she holds the property at law for the benefit of herself and A in equal, or any other kind of, shares.
CASE SCENARIO ANSWER
It is quite clear from the facts that A has a beneficial interest in the house. This can be seen from what A and B must have intended when they bought, the fact that A has contributed money to the household to allow B to meet the mortgage, the fact that A has spent every weekend for six months working on the house to make it better for himself and B and, arguably, the fact that if A had been able to get a mortgage when they bought, the house would have been in joint names all along.
A can apply to the court for an order under Section 14 of the Act. The order he will seek will be one declaring that B holds the house on trust for herself and A and that their beneficial interests are equal so that on a sale of the house they each take one half of the proceeds of sale after clearing the mortgage, the estate agent's commission and the solicitors fees for the sale. The court can also order a sale of the property at a price to be fixed by reference to a valuer's report or, better still, to be agreed between A and B.
There may be good reason for not ordering a sale on A's application. If there are children of the relationship the court will readily conclude that part of the purpose of the trust was to provide a home for A and B together with their children. If the children are still at school and the house is still needed by B as a home in which to bring the children up, the court will limit itself to declaring the nature and extent of A's interest and setting a time for sale of the property such as the 17th birthday of the youngest child or, if later, that child's leaving full time education, the marriage of B or the voluntary sale of the house by B in circumstances where she does not need A's share of the equity to buy something else suitable in order to house herself and the children.
If the house is ordered to be sold, either immediately or at a later date, there is of course no reason why B should not simply buy out A's interest and bring the trust to an end.
SECOND CASE SCENARIO PROBLEM
An enquiry agent was instructed to find B. No results came from the search. A search was also conducted of the Probate Registries to establish whether B had died. He had not. The solicitors for A applied to the County Court for a declaration under Section 14 of the Trusts of Land and Appointment of Trustees Act and for an order for sale. At the time of issuing the claim, they also filed with the court a witness statement explaining the difficulty over finding B and applied for an order allowing the case to continue without service of papers on B. That application was granted, the claim was issued and listed for hearing and witness statements containing A's evidence were filed at court.
Shortly before the hearing of the claim the enquiry agent reported some progress. He found only two people of B's name in the United Kingdom. Both were written to with copies of the court papers and a warning that the case was to go before the court. Neither responded.
At the hearing the District Judge felt that an urgent solution was needed but was aware that B would have the right to apply to set aside any order made in his absence. An order was therefore made for:
1. Sale of the property forthwith.
2. Re-service of the papers and the order on B at the most likely addresses for him.
3. One half of the net proceeds of sale to A forthwith.
4. The other half of the net proceeds of sale to be placed on deposit by A's solicitors.
5. If B did not acknowledge service of the claim within 7 days, he would lose the right to apply to set aside the order.
6. If B did not give notice that he wished to make an application in respect of the net proceeds within 14 days of service of the order on him, he would lost his right to do so.
7. B was to co-operate in signing any contracts, transfers or other necessary documents.
8. If B could not be found or would not co-operate, the District Judge of the court could sign the papers on his behalf.
9.
10. The order was served at the address which A's solicitors had for B but it was returned with a note saying that B had moved. The papers were served again at the forwarding address and no response was received. The order therefore became absolute and A was able to continue with her sale. No further court hearings were necessary although, to avoid difficulty at a later date, A's solicitors filed with the court a witness statement setting out what had happened and asked for it to be placed with the court file.
This case shows the power of the Act. It can be used to resolve disputes between the parties and inactivity on the part of an unwilling co-owner. More interestingly, it can also be used to extract one owner from a stalemate when he or she cannot move because the other owner cannot be found.
FURTHER ADVICE
If you recognise these situations (based on actual cases) and think that you may have rights in your home after the breakdown of a relationship consult a solicitor immediately. You will be able to fund details of approved solicitors who have experience of this kind of matter using the link below.
GUIDANCE AND HELP
We aim to provide our clients with a quality legal service. We will help and support you. We will provide a professional and efficient service. We will use plain English and not legal jargon. All matters are completely confidential.
Free General Guidance
