Unmarried Couples Legal Rights Solicitor.

The best way to protect your rights to an asset is to formally agree what those rights are from the outset. These conversations can be difficult, but they are much less difficult, and expensive, than a legal dispute following separation.

There are different ways to protect your interests:

• Cohabitation agreement – a legally binding contract which sets out the terms on which property is held and how it should be distributed on separation. The scope of a cohabitation agreement can vary from the distribution of all the assets held in the relationship, or simply what should happen on the sale of a single property.
• Declaration of trust – a similar document to a cohabitation agreement but relating to a specific piece of property. A declaration can be entered into at the time the property is acquired, or at any point afterwards. They are often used where a couple purchase an expensive, one-off item, usually a home or rental/holiday property, or where one partner in a relationship wants to ensure their partner has no claim over an item of particular importance to them.

For an agreement to be enforceable, it needs to have been freely entered into with the intention it should bind both parties. The best way to ensure this is to get independent legal advice.

If it can be shown the agreement is invalid, there has been a variation to the terms of the agreement, or one party was somehow tricked into signing the agreement (through fraud, misrepresentation, or undue influence), it is possible for a court to disregard the terms of the agreement.

If you believe an irretrievable relationship breakdown has taken place, you should act immediately. Any joint banking accounts you hold should be frozen, to avoid your partner moving funds into an account in their own name. You can do this by contacting your bank. If you freeze your joint account, ensure any bills continue to be paid.

It is also important to contact a legal expert to plan your strategy regarding separation from your unmarried partner.

The welfare of any children of a relationship is the primary concern of the court. Ideally, the separating couple will agree on the basis on which any children will live with each partner and the contact arrangements each partner will have. If an agreement is impossible, an application for a Child Arrangements Order can be made. You may, sometimes, be ordered how any children should be financially supported if an agreement cannot be reached but usually this is dealt with through the Child Maintenance Service.

The concept of a “common law marriage” ceased to exist as a legal term in 1753, and the law has not since developed any comprehensive process for dividing the assets in the context of unmarried couples’ property rights, in the way it has for married spouses on divorce. In the absence of any prior agreement, each disputed asset is considered separately under the relevant property or trust law.

The court will take no account of the length of time an unmarried couple have lived together or whether one party has contributed to the relationship by bringing up children or running the home. Clear evidence that ownership of assets was intended to be shared will need to be presented.

Tenancy agreements can be made jointly either as joint tenants (where the parties hold equal shares in the whole) or tenants in common (where the parties hold specific shares of the property, which can be equal, but does not have to be). Where property is held as tenants in common, the respective shares of the property are usually clearly specified, and the situation is straightforward.

If you purchased a property as joint tenants, the legal presumption is that each of you is entitled to an equal share. This presumption exists even if the contributions made to the purchase price, or to the ongoing costs of maintaining or improving the property, were unequal.

To rebut this presumption, a clear intention as to each partner’s share in the property must be proven, or evidence of duress, undue influence or mistake must be presented to the court. This is hard to prove, and it is rare for such a claim to succeed.

It is possible to sever a joint tenancy and so convert it to a tenancy in common in equal shares. This can be advisable if a co-owner (“A”) no longer wishes his or her share of the property to pass automatically to the surviving co-owner (“B”) if “A” predeceases “B”. Please ask to speak to one of our experts if you wish to discuss this issue further.

Whatever basis the property is held on, disputes can arise when one party refuses to leave the property or agree to a sale. We can provide advice on how to seek an order for sale without the consent of your former partner or on buying out your former partner’s interest.

The court can order a sale if:

• It is satisfied that would align with the intentions of the parties when they purchased the property
• That sale aligned with the purposes for which the property is held
• The welfare of any minor who reasonably expects to live in the property as their home is secured
• The sale doesn’t prejudice the rights of any secured creditor or other beneficiary

Whether you are living in the property does not determine your rights to a share of that property. Your interest will remain if you move out but remember you remain jointly liable for the mortgage and any other bills if they are in your joint names.

Lanyon Bowdler’s team of family law solicitors has extensive knowledge and experience in resolving cohabiting couples property disputes. Having handled many such cases, we can help you refine a separation agreement for cohabiting couples that represents the best outcome for you.

You will need to prove both parties intended you would have an interest in the property when it was purchased (or when you moved in) and you acted to your detriment in reliance upon that agreed intention, by contributing financially or sacrificing an opportunity.

If you cannot evidence any explicitly stated intention that ownership of the property should be shared, it is still possible for the court to infer such an intention based on the actions of the parties, such as contributing to the purchase price, or paying some or all the mortgage. It is impossible to infer an intention to share ownership without these actions, but these actions are not sufficient in themselves.

It is important to note that simply paying for improvements to a property, without any evidence of an express agreement that doing so would result in an interest in the property, would not normally result in the court ruling that such an interest had been created. A claim to have any money spent repaid could be made, on the basis that the money was in fact a loan.

If it is not possible to come to an agreement with your former partner, you need to apply for a declaration of the beneficial interest of the assets. The court may make an order simply declaring the interests each person has in the assets, or it may order the assets be sold, or that one party should compensate the other for the loss of their beneficial interest in the assets.