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Finance & Property

What happens about property and finances when an unmarried couple’s relationship ends?

A popular and persistent myth: if a couple live together for, say, six months, three years, five years etc, they automatically acquire marital rights against the other. That is not true. There is no such thing a Common-law husband/wife. This concept of Common-law marriage was abolished in the mid 18th Century.

If a Cohabitant’s relationship comes to an end the only legal redress possible is as follows:

  • In respect of the family home - the Court will need to consider how the property is legally owned by the former cohabitants. The Legislation governing this area of law is The Trusts of Land Appointment of Trustees Act 1996. Judges decisions are based on principles of, Property Law, Equity and Trusts and are dealt with by the Chancery Division of the Court (not the Family Division, as is the case with divorcing couples) (see below)
  • Child Support – an application can be made by either parent to the Child Support Agency for child maintenance
  • Additional Child Support - in some circumstances you can make a claim to the Court for additional financial support for your child under Schedule 1 Children Act 1989 (see below)

The Court does not have the power to order payment of maintenance between former co-habitants. Only child maintenance can be ordered, which is most often dealt with through the Child Support Agency (CSA). Likewise, the Court has no power to order Lump Sum Payments or Pension Sharing Orders between former co-habitants.

However, if one of the former co-habitants has retained a Scottish domicile, following a change in the law in Scotland in 2006, it may be possible for a former co-habitee to bring a claim against the other former cohabitants in Scotland, even if a claim could not be brought in England or Wales.

Legal disputes in respect of Land and property

The Court’s have jurisdiction to resolve disputes between former cohabitants regarding the ownership of property. Where a property is owned jointly between former cohabitants, the usual starting point is that the property is owned in equal shares, regardless of the financial contributions made by both cohabitants. The position will depend entirely upon documents signed at the time of purchasing the jointly owned property.

Where the property is registered solely in the name of just one cohabitant, complex legal arguments may arise if the “non–owning” cohabitant seeks to establish a legal interest in that property. It is possible sometimes to establish a 'resulting trust' arising from financial contributions they have made to that property, for example, paying towards the deposit or paying for improvements to the home.

Alternatively, it is sometimes possible to establish what is known as a 'constructive trust' arising from promises made to the claimant by the defendant and the fact that the claimant relied upon those promises to their detriment. These arguments are unusual and are often very difficult to prove.

Financial provision under the Children Act 1989

If you have separated from your former cohabitee and do not have sufficient money to rehouse yourself and your child (who must be 18 or younger), it will be possible to apply to the Court for financial provision under the Children Act 1989, to assist you with this. The most common approach of the Court is to order that your former cohabitee, who must be the parent of your child, provide a property for you and your child to live in until your child becomes an adult or finishes full time education. The property will be owned by your former cohabitee and will be theirs when your child leaves home.

In limited circumstances, the Court may also order your former cohabitee to pay a lump sum to meet specific capital requirements for your child.

Finance and Property: An Overview    Finance and Property FAQ