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Divorce law blog

Safe as houses? The unmarried couple and the family home

05/04/2017   By: Nick Stone

"We've lived together as common-law spouses, do I have rights over my home now we're separating?"

Not necessarily. As shown by our recent survey, many people believe that unmarried couples who live together for a number of years have the same rights to property and financial support on separation as married couples. But there is no such thing as a common law marriage and the laws applied to divide a cohabiting couple’s property are very different from the laws used to divide a married couple’s assets. 

Often, a family’s most valuable asset is their home. If you are unmarried but living with your partner, it is important you know how the law works in relation to your family home.

Married couples, on separation, have a claim over each other’s property, regardless of whose name it is held in. This is not the case for cohabiting couples where the starting point is that a property (including the family home) belongs to whoever has their name on the legal title.

This is straightforward where the legal title to the family home is held in your and your partner’s joint names: you will own the property 50:50 unless there is clear evidence that you have agreed something else.  

Problems are more likely if your home is held in the sole name of one of you. Yes, you may have lived together for twenty years and have three children, but, as unfair as it may seem, if your name isn’t on the legal title, unless you can agree it with your partner, or convince a judge that you have a “beneficial interest”, your home doesn’t belong to you. This in turn means you are not entitled to any money from it – whether that’s a share of the net sale proceeds if the property is going to be sold or your partner “buying out” your share if they want to continue living there by themselves. 

To establish a beneficial interest, you will either have to show:

  • that you have contributed financially to the property through making mortgage payments, paying the deposit or paying for improvements; or 
  • that you and your partner agreed that you would own the property jointly, although this was never put into effect by changing the legal title. You would need to prove the existence of such an agreement, and/or any financial payments, by providing evidence, otherwise, it is your word against your ex’s.
Going to court is a costly process, both financially and emotionally. To avoid future disagreements, if you’re living together or you’re thinking of moving in with your partner without getting married, it would be sensible to sign up to a cohabitation agreement which clearly sets out how you will divide your assets in the event that you separate. The family team here at Mills & Reeve have lots of experience in drafting these agreements so do please speak to us. 

Find out more about the rights of cohabiting couples by viewing our Myth of the Common Law Marriage web page and look out for more blogs this week on steps unmarried couples can take to protect their financial position. 

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