Whilst the law might seem to be harsh for those couples who are not married but are separating, you cannot say it is not simple. Well, initially at least.

Where the family court in a contested financial relief case in divorce proceedings will consider various factors as set out in legislation, namely the Matrimonial Causes Act 1973, and a plethora of cases, in order to determine the distinctive shares of the matrimonial acquest between husband and wife (notwithstanding how those shares might appear to be held on the face of things), the law is not applied so in respect of those couples who choose not to get married.

The Court in a case concerning a separated unmarried couple would be interested in only how the parties have recorded how they hold shares in any particular asset. For example, if you were to own a house jointly, the position would be as is stated at Land Registry against the registered title of that property. These days, most property is registered title thankfully.

It is difficult therefore to argue against what is there in black and white, although not impossible. There have been a number of recent and not so recent cases, amongst which are the likes of Stack v Dowden [2007] UKHL 17, and Lloyds Bank Plc v Rosset [1991] 1 AC 107, which are go-to cases if you are looking to make a challenge and, what you would need to establish to make a successful challenge, is that what arose from the arrangement was an implied trust.

This is law concerning resulting trusts, constructive trusts and proprietory estoppel. Principles which were established a matter of decades ago and which can be applied in cases concerning property and assets held between parties who are not married to determine the beneficial ownership of those assets. Not so simple now!

So when cohabitees choose not to get married, are they really aware of the distinction the court will make on that fact alone if the worst came to the worst? It can often feel baffling to a family solicitor that couples can willingly enter into financial arrangements with another person, that affects so many facets of their lives concerning home, work, education of the children etc, without having anywhere near the information they need as to whether this is the most appropriate arrangement for them, and what the implications are if things go wrong. This is as true of course for married couples!

The fact is that, if you are not married, and you buy property together, you are reliant to a certain extent on your conveyancing solicitor to give you the correct information for you to make an informed decision about how you are to hold the property. Regrettably, we so often see one of a separated couple who made an unequal contribution towards the deposit on a property, but who recorded on the transfer document that the parties were to hold their interests in the property equally. This is about being informed and thinking ahead, and proper specialised legal advice at this time can be just as imperative as later when things have gone wrong, plus the consideration of entering into a Cohabitation Agreement to regulate the financial arrangement with your unmarried partner.

So where do you find your remedy if you are a separated unmarried couple who disputes how the joint assets are held, or who wishes to make a claim against the assets of the other party in that party’s sole name? The answer is either the law of trust, if you have children – The Children Act 1989, but certainly there is no such thing as a common law spouse. The Law Commission compiled a comprehensive report on this ambiguous and difficult area of law in 2007, but the government has shelved plans to implement these reforms and we are back where we are started. In the absence of any definitive law on the subject, legal advice from a family professional is a must.

Please contact our family solicitor Louise Martin to make an appointment at louise.martin@onionsanddavies.co.uk

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This information refers to the law of England & Wales only, which from time to time changes. In particular, tax information changes annually. It is not a substitute for professional advice, which is up to date and specific to your needs. This information is a summary of the provisions relating to divorce and cannot cover every aspect of their operation. It represents our understanding of current legislation in England and Wales but should not be relied upon as an authoritative statement of law nor as constituting advice. We would advise that legal advice be sought in every circumstance.