In recent years there has been a huge increase in the number of cohabitating couples and families in the UK. This means that the parties live together but they aren’t married. According to government statistics, the total number of cohabiting couples has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%.
The rights of cohabiting couples on separation are drastically different to those who are married. There is a legal principle that the family home on separation of married couples should be considered a marital asset and will be included in the pot of assets that should be shared between the parties. They also have ‘matrimonial home rights’ where they have the right to live in the family home, no matter who owns it.
When non married couples separate, this is not the case and there is no automatic legal protection for either party. What happens to the home can very different, depending on a couple of different factors including; who legally owns the property at HM Land Registry, what the couples intentions were when they bought the home and who has financially contributed to the home, for example, by paying the mortgage or paying for home improvements.
In a worst case scenario, if your ex-partner legally owns the house, you may not be entitled to anything, even if you have lived in the property for years.
In some situations, even if you do not legally own the property and your name is not on the title deeds, you may be entitled to a share of the value of the property. For example, if your partner expressly told you that the house was intended to be a home for both of you and you both contributed to the mortgage and other bills and expenses. This is through something called a ‘constructive trust’. For this to apply, you would need to be able to show that there was a common intention that you should have an interest in the property and that you have relied on this to your detriment. An example of this could be that you didn’t save to buy your own property and instead paid towards the house that you lived in, including the mortgage and home improvements.
This process is called establishing a beneficial interest, where you can show that you have an interest in a property that is not reflected in the legal ownership. It potentially gives you a financial share or right to live in the house.
If you have children, you may also be able to claim under Schedule 1 of the Children Act. In which case, the court could order that you be able to stay in the home until the children are 18, or that the house should be temporarily transferred to you. The crucial thing here however, is that you would be making a claim for the financial support of the children, instead of for yourself.
This is a complicated and sometimes messy area and one that the government is proposing to change the law around – however this may still be a long way off.
If you are worried about your situation should you separate, there are things you can do to protect yourself including asking your partner to consider, including a cohabitation agreement or a declaration of trust. If you have separated and are now worried about the future, our team can help you assess your options and what you might be entitled do.
To find out more please contact our Family Department on 0114 218 4000 or email info@tayloremmet.co.uk