Property Disputes Between Unmarried Couples

Who Owns the Home When You Separate

Unmarried couples who separate have no equivalent of the financial orders a divorce brings, and there is no legal status of common law marriage in England and Wales, however long you lived together and whether or not you have children. What you can claim comes from ownership and trust law, from what you recorded in writing, and, for children, from the Children Act 1989.

The starting point is the title register at HM Land Registry, which shows whose name the property is in and, where there are two owners, how joint ownership is recorded. Joint tenants have equal rights to the whole property and the survivor takes it on a death. Tenants in common can own different shares, and a share does not pass automatically to the other owner.

Legal and beneficial ownership differ: the name on the register holds the legal title, and the beneficial interest is the value behind it. A court can declare what each of you owns and order a sale, but it cannot award maintenance for you or share a pension. Court procedure sits on our page on TOLATA claims, accounts and debts on separation for unmarried couples, and money for children on unmarried parents and children.

The Legal Test for a Beneficial Share

Where you recorded the shares in a signed declaration of trust on the purchase, that is where the court starts and the presumptions below do not apply. A declaration of trust about land must be evidenced in writing signed by the person able to declare it, under section 53 of the Law of Property Act 1925, and joint buyers can confirm how they hold the property in the transfer or on form JO. See declaration of trust.

Where nothing was recorded and the home is in joint names, Jones v Kernott [2011] UKSC 53, following Stack v Dowden [2007] UKHL 17, held that equity follows the law: you start as joint tenants in law and in equity. Only evidence that your common intention was in fact different, at the purchase or later and deduced objectively from conduct, displaces that: if none is shown the shares stay equal. Where a different intention is clear but the proportions cannot be established, each of you gets the share the court considers fair on the whole course of dealing over the property, and contributions matter without being the only factor.

Where the home is in one name, the first question is harder: you must establish a common intention that you were to have a beneficial interest at all, and that you acted to your detriment in reliance on it. Only then is the share quantified. Geary v Rankine [2012] EWCA Civ 555 confirms that the intention must be common to both of you, deduced objectively from conduct, and that the burden is harder where the property was an investment rather than a home.

A promise can found a different claim. Proprietary estoppel asks whether there was an assurance about the property, whether you relied on it and whether you suffered a detriment, and in Guest v Guest [2022] UKSC 27 the Supreme Court described the remedy as answering the unconscionability of going back on the promise. No signed document is needed: estoppel rests on the assurance, and the 1925 Act does not affect resulting, implied or constructive trusts.

Evidence and Common Problems

These cases turn on documents more than recollection:

• the title register and the transfer, including any form JO or trust panel
• the conveyancing file and the solicitor's notes from the purchase
• where the deposit came from, and whether it was a gift, a loan or an inheritance
• mortgage and bank statements showing who actually paid
• invoices and building contracts for improvements
• messages and letters in which ownership was discussed

A lender, a relative who put money in or a trustee in bankruptcy may also have an interest, and section 15 of the Trusts of Land and Appointment of Trustees Act 1996 (the 1996 Act) requires the court to have regard to the interests of any secured creditor, so the mortgage shapes which orders are realistic. Where the trustee of a bankrupt's estate applies under section 14 for an order for sale, section 335A of the Insolvency Act 1986 applies instead of section 15, and where the trustee applies more than a year after the estate vests the court assumes, unless the circumstances are exceptional, that the creditors' interests outweigh all other considerations.

Occupation, Outgoings and Protecting Your Share

Who lives in the property while the dispute runs is a separate question from who owns it. Under section 12 of the 1996 Act a beneficiary entitled to an interest in possession has a right to occupy where the purposes of the trust include making the land available for occupation, or the trustees hold it so as to be available, unless the land is unavailable or unsuitable for them. Section 13 lets the trustees exclude or restrict the occupation of one or more beneficiaries, but not all of them, and not unreasonably. Where you own the home together the section 13 power belongs to you both as trustees, so a dispute between you goes to the court under section 14, which can make any order relating to the exercise by the trustees of their functions. The power cannot stop someone already living there from staying unless they agree or the court approves. Section 13 also allows conditions requiring the beneficiary who stays to compensate one whose entitlement to occupy has been excluded or restricted, sometimes called occupation rent.

Where a mortgage is in joint names both of you stay responsible to the lender for the payments, including arrears, even after one moves out.

Where the home is in the other person's sole name, an interest under a trust of land cannot be protected by a notice, because section 33 of the Land Registration Act 2002 excludes it. The entry to apply for is a Form A restriction, on form RX1, explaining how the trust arose. HM Land Registry's guidance on private trusts of land says more than a bare assertion is needed, and that unless the owner consents the application is notified to them, and they have until noon on the fifteenth working day after the notice is issued to object.

If you hold as joint tenants and do not want the survivor to take everything, you can change to tenants in common without the other owner's agreement, by registering a Form A restriction on form SEV and serving a notice of severance where they do not agree. Make a will at the same time: a partner who was not married or in a civil partnership does not inherit on intestacy.

How a Property Dispute Is Resolved

Whether a dispute settles or is decided, the work runs much the same way:

1. We obtain the title register, the conveyancing file and the mortgage history, read your records of what you paid, and advise on the likely shares.
2. We set out the claim in writing with the documents behind it, as the Practice Direction on Pre-Action Conduct and Protocols expects, and try to agree a valuation.
3. Where talks stall we suggest mediation or another out of court option, which that Practice Direction expects you to consider before issuing.
4. On agreement we record the outcome: the transfer or sale, a deed dealing with the shares, and the mortgage released or taken over with the lender's agreement.
5. If not, we apply under section 14 of the 1996 Act for a declaration of the interests or an order for sale, in the High Court or the county court. The fee depends on what is claimed: see court and tribunal fees and help with court fees.

When Legal Advice Is Especially Important

Advice is most useful at the start, and especially where:

• the home is in one name and you funded the deposit, the mortgage or an extension
• a child lives there: section 15 of the 1996 Act requires the court to have regard to the welfare of any minor who occupies or might reasonably be expected to occupy it as a home, and money for a child can be sought as Schedule 1 provision for a child
• the other person is about to sell, remortgage or transfer the property
• you signed something without separate advice, or are about to: see cohabitation agreements
• there is domestic abuse. Call 999 in immediate danger, or the National Domestic Abuse Helpline on 0808 2000 247. An occupation order can regulate who lives in the home: a former cohabitant with no interest in it applies under section 36 of the Family Law Act 1996, for up to six months and one extension, and someone with a beneficial interest applies under section 33, which carries no six month limit

Costs are another reason to take advice before writing to the other side. A claim about your share in the home is a civil claim, so the civil costs rules apply: the general rule is that the unsuccessful party pays the successful party's costs, although the court may order otherwise and weighs how both sides behaved before proceedings.

How RakLAW Solicitors Can Help

We act for people on both sides of these disputes from our office at 42 Shad Thames, London SE1 2YD, a short walk from Tower Bridge in Southwark. Our wider advice for unmarried couples covers the related services. The first step is a free 15-minute consultation: call 0203 345 2000. We will explain how the law applies, the evidence needed and how we charge, before you instruct us. We are privately funded and do not offer legal aid.