MortgagesJun 23 2020

Rights that unmarried couples do and don't have

  • Describe the differences in property ownership between married and unmarried couples
  • Explain how property ownership is determined in the case of unmarried couples
  • Summarise how child maintenance is determined
  • Describe the differences in property ownership between married and unmarried couples
  • Explain how property ownership is determined in the case of unmarried couples
  • Summarise how child maintenance is determined
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Approx.30min
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Rights that unmarried couples do and don't have

Property claims for unmarried couples are determined under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This is like any other dispute between the co-owners of property.

If, at the beginning of lockdown, you moved into your partner's property, you may have had little or no time to plan how your cohabitation might work in practice

The Act deals with agreements about the ownership of property. This is a complex area of the law with agreements being express, implied or deemed under the law relating to trusts by the court – it is therefore essential that specialist legal advice is obtained.

If, at the beginning of lockdown, you moved into your partner's property, or alternatively they moved into your property, you may have had little or no time to plan how your cohabitation might work in practice.

Often, before taking the step of deciding to live together, couples will consider the implications of the relationship, and will discuss their financial intentions.

You may not have done this in the rush to reunite after the end of lockdown, but it is not too late. It is important to have regard to the following principles.

Establishing a common intention to share ownership of a property can have significant legal implications – especially if the person relying on the promise is giving up their own property, or the belief that their partner has agreed to share their property.

It is therefore important not to make promises that are not intended to be kept, as establishing common intention to share ownership of a property can have significant legal implications.

If a TOLATA claim is successful, it will result in a division of property according to each individual’s financial contribution to the purchase or ongoing upkeep of a property, or as otherwise provided in a legally binding agreement. 

This is quite different from the position for married couples, where the overarching principle the court will apply is a fair financial outcome with reference to the 'yardstick of equality'[2].

This is regardless of whether the parties have contributed financially or contributed in other ways, for example, caring for the children of any marriage to enable the other spouse to earn an income.

The idea is that there should only be a departure from the 50/50 division of matrimonial assets if there is a good reason for doing so.

Although any potential interest in property will not be automatically acquired if you are not married, it is prudent to consider how cohabitation may affect you financially in the long term if you later separate.

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