How to advise unmarried, cohabiting couples

Given that there is no such thing as a common law marriage and cohabiting couples have no legal rights, any claim would need to be brought under the laws of property and trusts which would be used to resolve any sort of dispute of this nature.

Under these laws, while one partner might still be the legal owner of the property, the other could acquire a ‘beneficial interest’ in it, if for example they contributed the capital. 

Paying rent or helping towards utility bills is not likely to be enough to affect the position but if for example they had paid off part of the capital debt of the mortgage or paid for the property to be refurbished thereby increasing its value, those could potentially give them a beneficial interest. 

Unlike some EU countries, the law in the UK does not acknowledge the rights of a cohabiting couple and injustice is thus caused by the confusing and complex rules of property and trust law when dealing with the assets (usually their home) when they decide to separate.

Equally if there were promises made, for example, if they put money into the property by helping towards mortgage or decorating or refurbishing the property because their partner promised them they would be entitled to a share of the property, then it is possible they would be entitled to a share of the equity.

This is because the contributing partner had relied upon the promise given by their partner to their financial detriment.

Claims of this nature can hang on the meaning of words such as “this will be our home” or “if you pay towards the mortgage and refurbishing the house you will own it with me” which is important to bear in mind when asserting an interest. 

While the common intention of how couples wish to live arises only after the purchase of a property or once they start cohabiting, the court will most likely be slow to infer from conduct alone whether the ex-partner is successful in making a claim and they will look at any financial contributions made by the partner who is not the legal owner and whether it was to their financial detriment. 

This is not a particularly straightforward area of law and if there was a dispute to be dealt with by the court in the future, the judge would have to look at all of the background circumstances to understand what the common intention was.

Also, other factors may have to be taken into account such as if there were children, then there would be a dual claim which could be made under the Schedule 1 of the Children Act.