The latest figures released by the Office for National Statistics show that the number of couples living together has doubled over the last 20 years to just over 3.3 million. More concerning are the figures produced by the British Social Attitudes Survey, which show 46 per cent of the public are under the impression when they cohabit they create a common law marriage.
It is unfortunate but even in the modern age of family law, there are no legal provisions to assist an unmarried couple who break up unless they have children. This means there is no right to spousal maintenance, pension entitlement or the division of savings held by the other partner. If they shared a house together which was owned by only one of them then a claim may lie under the Trusts of Land and Appointment of Trustees Act 1996.
Sadly, many individuals are leaving themselves open to the risk of losing everything at the end of a relationship. So how does the law treat unmarried couples?
The first question is how is the property held legally? The main asset that any separating couple will have to deal with is a property. The first consideration for any couple should be to consult the land registry to see how the property is held. The majority of properties are held jointly as Joint Tenants meaning in the eyes of the law each owner is treated as equal. If one owner dies, the other acquires their share in the property. The other way of parties holding a property jointly is as Tenants in Common. This means that each party holds an equal share of the property. It can also be held in unequal shares. This is normally the case when one owner has put more money into the property than the other. The Courts will therefore find that distribution should be in accordance with how the property is legally held.
This can lead to individuals who are not named on the title to the property without any claim. It can be extremely difficult to convince the Courts to depart from this stance. A claim can be made under the Trusts of Land and Appointment of Trustees Act 1996 on the basis that the title to the property does not reflect the true position. The court has to be satisfied that there was an understanding or arrangement between the parties that the non-legal owner had a share in the property. This will usually involve evidence that the owners have entered into discussions about departing from the legal ownership of the property and one of the owners will have had to have contributed significantly towards the property in some way. Home improvements are good evidence of this.
Other considerations can include when one joint owner continues to live in a property and pay the mortgage and another owner moves elsewhere. The owner remaining the property will want credit for their contribution. The Court accepts this. However, credit will be given for half of the capital repayments of the mortgage. The other owner however has had to rehouse themselves and therefore is entitled to what is known as an occupational rent. In those circumstances that owner will be entitled to the cost of half of the rent they have paid. Often one can cancel the other out, leaving owners again looking at the legal ownership.
With all this in mind couples need to think very carefully about this when purchasing a property and having this recorded on the transfer document. Conveyancers should tell clients about this when completing on a property. From a family law perspective couples can choose to protect themselves through a document known as a Cohabitation Agreement. This document sets out in more detail the parties intentions and can be invaluable if the couple subsequently splits up as it can also include how personal possessions are to be divided and in some cases other issues such as maintenance can be included.