Published on November 24, 2023

The house isn’t in my name and we are unmarried. Do I have any rights? As an unmarried cohabitant there is no automatic right to a share in the family home even if you have lived there for many years. This can feel particularly unfair as the position would be entirely different if you were married.  The government has been looking at the inequality between those who are married and those who are not for many years, however, currently there are no firm plans to change the law at this time. This may change following the next election.  

Photo by Tierra Mallorca on Unsplash

An unmarried cohabitant in this situation would need to investigate whether they could bring a claim for a beneficial interest in the family home  under the Trust of Land and Appointment of Trustees Act 1996 (ToLATA). This will generally only apply to the family home rather than any additional properties owned in your partner’s sole name, unless you have made contributions towards those.

This is a very technical area of law and the risks are high. These are Civil claims, not family claims and as such the losing party will often face a cost Order against them as well as their own legal fees.

Typical questions that we would ask our clients in this situation would include:

  • What discussions did you have at the time of purchase?
  • What were your financial contributions at the time of purchase and during your cohabitation? E.g who paid the mortgage? Who paid the utilities?
  • Did you carry out any renovations to the property during the course of the relationship?
  • Do you have children together? 

This is a non-exhaustive list and each case turns on its own facts. It is important to have a consultation with a specialist solicitor so that you can receive the correct advice for your situation. We would assess and consider whether you could bring a potential claim for a Resulting Trust, Common Intention Constructive Trust, and/or  Proprietary Estoppel.

Solicitors, and ultimately the courts are called upon to try to work out what the parties’ intentions were at the time of purchase and during the relationship. If you contributed towards the purchase price or the mortgage repayments, what was discussed? The same can be said for improvements. Improvements can cause a great deal of dispute amongst parties once they have separated. You will need to retain evidence of the money you have spent by way of bank statements or invoices.

If the Property is registered in one person’s name and the parties have separated then you may be advised to register a restriction against the title at the Land Registry. This will protect the non-owning party whilst they enter into negotiations.

It is important to understand that court proceedings are by no means inevitable and the vast majority of claims are settled either through correspondence or mediation, but it is important to receive advice before you reach an agreement.

Further consideration will be needed if there are children and we would direct you to this article where this is discussed further, We have children together, not married but my partner has more money than me- what can I do?

You may also find this article useful: We’re not married. Does that mean mum gets the kids?’

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The Early Days Of Separation

Humans are designed to cope with many onslaughts, but change continues to prove extremely challenging. How you manage the early days of separation or divorce has the potential to set the tone for the rest of the process.

When couples separate, they are often thrown into a period of uncertainty. Identities are changing from couple to single, from mum and dad together as a family unit to mum with children and dad with children. Depending on the circumstances and who decides to leave the family home, there are many questions that arise during the early days of separation. “Will we have to sell our home?” “I haven’t worked since we had children – how will we manage financially?” “What will our friends and family think?” “How much will divorce cost?”
“Will I cope on my own?” There seems to be so much to sort out both practically and emotionally and it comes at a time when at least one of you will be ‘all over the place’ emotionally due to the loss you are experiencing. This can make decision-making seem impossible. Who wants to agree the practicalities of legal issues and more importantly organise the children when they are devastated, angry and confused by loss? It can turn otherwise rational, clear-thinking mums and dads into what appears to be belligerent, stubborn, unreasonable people.

Take Your Time!

In those early days of separation or divorce, take your time if you can. Seek support from friends, family and professionals. Try not to make any big decisions too quickly.
Bear in mind that communication problems with your ex and all the pressures on family life you are now experiencing, like for many separating couples, will get better with time. It’s important to recognise that you and your ex will more than likely be in very different emotional places at the moment; different stress levels and anxieties will be making communication difficult. Taking the time to sometimes do nothing, to not react, give things a day or two, can prove very useful techniques.
What you have to remember is that if you have children, your ex is always going to be part of your life. That can be hard to take on board when you are feeling hurt and angry. If you can find a way to communicate with each other that focuses on the children, you will all benefit in the years to come.

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