Cohabiting couples are the fastest growing family type of the past decade. With fewer couples choosing to marry, or deciding to marry later in life, many unmarried couples are living together completely unprotected from any legal rights should relationship issues arise.
Cohabitation offers many rewards and is a very sensible decision before starting a family or making any long-term commitments to each other, however, it also brings its share of challenges, particularly around property ownership.
The Myth of ‘Common Law Marriage’
A widespread but mistaken belief is that long-term cohabitation affords the same rights as marriage. In fact, over half of Brits believe that “common law marriage” exists and that living with a partner over a long period of time grants the same legal rights as a married couple, should they separate. This misconception can lead to significant issues when the relationship ends. Property disputes often arise in these situations, causing emotional and financial turmoil. Understanding your legal protection, or lack thereof, is crucial to avoid complications and ensure that both parties’ interests are safeguarded.
Some cohabitation property disputes include:
- Disagreements on selling a property
- Disagreements on the split of equity or value of a property
- Disagreements on who should remain living in the property
- Disputes on financial contributions
- Disputes over possessions, cars and pets
- Shared debt disputes
- Child contact issues
What Happens if you are Involved in a Property Dispute?
There are legal frameworks in place to protect unmarried couples, friends or individuals who are embroiled in a property dispute. The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) regulates the relationship between owners of land and their occupiers. Whereas a Family Court would look forward at what is ‘fair’ for couples separating, TOLATA claims look backwards at what the ownership intentions were when the property was purchased, or a couple moved in together. The outcomes can be very different, which is why it is important for unmarried couples to be aware of their legal position.
Understanding TOLATA Claims
TOLATA applications typically cover three main types of claims:
- To decide who is entitled to occupy the property
- To decide the nature and extent of the ownership
- To decide whether there should be a forced sale of the property
It is difficult to provide an accurate timeline for how long a case takes. Each dispute is unique and the timescales will vary depending on whether each party has proficient solicitors, the court waiting times and how complex the case is.
The basic process that the majority of claims follow starts with pre-action steps – trialling some alternative dispute resolution methods such as letters before action or mediation. If that doesn’t provide an amicable resolution, then an application will be made to court. Claim forms are served and parties have time to respond and defend. The case is then allocated a ‘track’ with the courts, a case is listed, trial hearing takes place, and the judge will make a decision based on the evidence submitted by both parties.
Some key issues that the judge will consider when determining a fair outcome include:
- The intentions of property ownership and what the property was purchased for
- Any written agreements that were put in place
- Financial contributions made by each party
- Welfare of any children or dependents that live in the property
How to Protect Yourself as an Unmarried Couple
One of the best ways to protect yourself from a future dispute or legal issue is to put legal protection in place from the start. This step is often missed, as couples moving in together or buying a home are not thinking about the worst-case scenario at that point. They are in a happy, stable relationship, looking forward to taking the next step together.
To ensure that there is no ambiguity around property ownership and to clearly set out what will happen should the relationship end, couples should obtain their own independent legal advice, and depending on their circumstances, consider the following legal documents:
- Cohabitation Agreement – this is a legally binding contract for couples living together that sets out an agreement on financial provisions, ownership and any other concerns should the relationship breakdown.
- Pre-Nuptial Agreement – if a couple plans to marry in the future, they can enter into a written contract that outlines how assets will be handled should they divorce.
- Declaration of Trust – this document establishes the ownership from the outset of a property purchase or can be put in place later down the line. These are particularly useful documents if ownership is not equal, for example, one party already owned property or contributes more financially.
- Wills – it is sensible for any homeowner to have a will, regardless of whether they are married or not. But they are particularly important as intestacy rules don’t recognise cohabitants or non-biological children. To protect a partner and stepchildren, provisions would need to be made in a will.
Whilst it is not legally-binding, it is sensible to have open, honest discussions about what a fair outcome looks like should the relationship breakdown. It is also useful to keep clear records of financial contributions (mortgage payments, maintenance costs, major purchases, household bill payments etc.). Financial transparency can help avoid disputes related to monetary contributions. This evidence could play a crucial role in protecting yourself from a claim.
Legal Advice on Property Disputes
Hindsight is great, but often useless when it comes to a property dispute. Foresight and pre-emptive planning are a much better route. But if you find yourself in a dispute over a property and do not have any legal protection to rely on, then you should seek legal advice early on.
Seeking some advice from a Solicitor who specialises in property disputes will give you peace of mind, clarify your rights and give you an idea of the route ahead to find a resolution..
Whether you are in a dispute over ownership, selling a property or cannot agree on how to fairly split the equity or debt following a relationship breakdown, then please get in touch with our Dispute Resolution team who can help you find a way forward.
Call us on 01253 362500, email info@bbelaw.co.uk or complete our handy contact form online to arrange a call back from a Solicitor.
