The latest ONS statistics from 2019 have shown that marriage rates for opposite-sex couples have fallen to their lowest rate on record since 1862; for men, there were 18.6 marriages per 1,000 unmarried men; for women, there were 17.2 marriages per 1,000 unmarried men. But what does this mean in terms of the legal position?
It may come as a surprise, but even for couples who have never married and have been together for a very long time, there are no additional legal rights which are accrued. To dispel a common myth, there is no such thing as “common law marriage”. What are your legal rights in the case of unmarried couples?
In short, the ownership of assets is to be determined by legal ownership. To use the idiom, what is mine is mine and yours is yours. It is only assets (and unfortunately liabilities) which are in joint names that parties have a right to. There are some, limited exceptions to this rule, but for the most part, this is the approach that is followed in law.
The Family Home
The most common area of dispute is the family home. This is often owned by parties in their joint names. In this case, the parties are entitled to a share in the equity (the money left over after deduction of the mortgage balance (if any)) in accordance with their legal ownership of the property (this in most cases is 50/50). This is, however, not always the case.
There are times where a property may be owned in one parties’ name alone, but there is an agreement for the other party to have a share in the property. This is known as a common intention constructive trust (in essence, both parties agree that the other party has an interest of a specified percentage in the property despite what is said within the deeds to the property. This is, however, not straight forward. This is covered in more detail below.
Often, there are circumstances where parties will contribute different amounts to the purchase of a property, which is in joint names. This can either be from their own savings, or from the sales of previous properties. Or, as above, the property can be in one party’s name, but not the other, but there have been contributions towards the purchase price.
In either of these situations, before you purchase, it is recommended that you have either a Declaration of Trust, or a Cohabitation Agreement prepared to set out what your intentions are in respect of the property from the outset. This avoids arguments in the future which can be extremely costly for both parties.
In the event that there is a disagreement following the breakdown of the relationship, either owner has the right to ask the Court to make certain orders in respect of the property. These applications are primarily under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
The main areas are as follows:
1. To determine who should be allowed to live in the property.
2. To obtain an order for the property to be sold if one of the parties is refusing to sell it. The sale is likely to be ordered, but could be postponed until a date in the future depending on the circumstances of the case.
3. To determine whether a person has an interest in the property, or the extent of that interest in the case where there are unequal contributions, but no written agreements as to the extent of ownership at the outset of proceedings.
These applications are complex and it is recommended that specialist legal advice is taken to discuss the case generally before any applications are filed with the Court.
Other Jointly Owned Assets
In long-term relationships, there can often be other assets which parties have bought together, or bank accounts/investments which are in joint names. The default position in relation to these assets is that both parties are entitled to an equal share of the balances contained in these accounts, or a share up to the value of the assets.
This is often, save in the case of pets, a relatively uncontroversial part of any separation process.
Assets in Sole Name
As set out in the start of the article, where assets are in a parties’ sole name, such as pensions, investments, or any other property, this will usually remain the property of that person on separation. Even in circumstances where you may have been in a relationship for 50 years, there is no automatic entitlement to a share of the other party’s pension or other assets in their sole name.
Exceptions to the above
There are exceptions to the usual rules for unmarried couples and the division of assets. However, these will not apply in all circumstances and advice should always be sought in the event that these areas may be applicable. The first is in the case of couples who were engaged, but never married. In this situation, it is possible for parties to ask the court (both men and women) to make orders in relation to financial provision under the Married Women’s Property Act 1882. This specifically will be the subject of a future article.
The second exception to this normal rule is if there is a need for financial provision for the benefit of any children. In this circumstance, applications can be considered (and made) under Schedule 1 to the Children Act 1989. This relates to financial provision for any child of the family. Again, specialist advice should be taken in circumstances where this could be relevant.
Conclusions
Despite the rising number of cohabiting couples, the protections afforded in law are not the same as married couples. If you are in a cohabiting couple, or you are starting a relationship with someone, buying a property together etc. it is always advisable to have an agreement in writing setting out what is to happen if, regrettably life happens and things go wrong.
It will save both you and your partner a great deal of stress if there is a clear plan and agreement to follow. It may not be the most romantic thing in the world, but unfortunately life can be unexpected and it is better to agree everything whilst you get along, than if the worst happens and an agreement has to be reached at that stage.
