Personal: The unmarried couple

Increasingly people are living together as a couple without getting married. There is a widely held myth that there is a "common law" marriage after the couple have lived together for a certain period of time. This is not true.

The rights of unmarried partners are very different to married couples.

Property rights in relation to their home and other assets are not subject to a wide range of discretion as in divorce proceedings. It depends on the terms on which the property was purchased. Commonly couples purchase a property as joint tenants which means that they own the property equally.

If the Couple purchase the property in joint names as tenants in common they may own unequal shares. The documents signed at the time of purchase of the property should make the position clear. This should be investigated.

If the property is purchased in the name of one party and occupied by the couple it does not automatically mean that the non-owning person gains an interest in the property even if they live together for many years.

However the non-owning party may acquire some rights and an entitlement to a share of the property depending on a number of factors which are determined according to the Law of Trusts. There are different types of trusts such as resulting trusts, constructive trusts and implied trusts. In these cases it is important to ascertain whether there was any agreement or discussion concerning the beneficial shares in the property. We have to examine closely how the purchase of the property was funded and who has been paying the mortgage. It is important to consider the conduct of the parties and for instance whether one party has paid the mortgage or carried out substantial home improvements. The process involved is very different to a divorce settlement. In divorce we have to consider meeting the future needs of the parties. If the couple are not married there has to be a close examination of the past.

If one party manages to establish that they have a share in a property, that share is not necessarily one half. Again it depends on the circumstances of the case.

Trust Example 1 : -

A young couple decide to live together and purchase a property in their joint names as joint tenants. The man pays £30,000 and the woman pays £10,000 towards the deposit. The balance is raised on a joint mortgage. Twelve months later the couple separate. The likely result is that each party will entitled to an equal amount in the equity in the property notwithstanding their contribution. Any rise or fall in the value of the property will be shared equally.

Trust Example 2 : -

A couple purchase a property in the sole name of the woman. The man has a poor credit record and so they decide to go ahead in the woman's name alone. However the man pays half the deposit and pays half the mortgage payments when they fall due. The couple then separate. It is likely that the man would argue that he has a beneficial share in the property of one half because there is a resulting trust. There may have been discussions between the parties which could change the shares. The history of the case affects the outcome.

If a couple have been engaged (or for that matter if they marry) there is an alternative procedure available when resolving a dispute as to the ownership of property under the Married Women's Property Act 1882 although this is rarely used.

It is not possible to obtain a maintenance order as in some states of America simply because you have been living with your partner. The only maintenance payable would be in respect of children. However if the couple separate and the person staying in the property continues to pay the mortgage on their own, there can be arguments as to whether there should be an adjustment in the 50/50 share of a jointly owned property.

There are some laws which apply equally to married and unmarried couples. The Family Law Act 1996 deals with domestic violence and abuse cases and these laws apply equally whether a couple is married or not.

It can be important for one party to protect their interest in a property which they do not own. A notice can be registered with the Land Registry if sufficient grounds exist. Many of the uncertainties which unmarried couples face on splitting up can be addressed by giving the matter careful thought before living together and a Deed of Trust and/or a Living Together Agreement [link] is advisable.

The law in relation to unmarried partners can be very complicated. The family team at Davies and Partners are experienced in giving clear advice in complicated cases.

If you wish to discuss matters with one of our team concerning your situation please do not hesitate to contact us on This e-mail address is being protected from spambots. You need JavaScript enabled to view it or telephone us. Click here for our contact details.