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By Louise Martin, Solicitor & Family Mediator

Our Family team advise both married couples and unmarried couples on separation, but the way that the law treats married and unmarried couples is completely different. This is particularly relevant in practice when it comes to the family home and how the interests in that property should be divided between the parties.

In respect of married couples, the relevant law to be considered is the Matrimonial Causes Act 1973, and caselaw setting out the considerations of the court, who will be concerned with matters such as the needs of the parties and fairness.

In respect of unmarried couples, however, there are no such considerations. The starting point when it comes to the division of property for separating unmarried couples will be the land registry documents. These are hugely important in determining the position.

In unmarried couples’ disputes regarding the family home, there is a distinction between sole owners (i.e. when the property is in the sole name of one party, and the non-owning party is trying to establish an interest) and in the case of joint owners (i.e. when the property is registered in the couples’ joint names, but there is a dispute as to their respective shares).

In a sole owner case, the non-owning party who wishes to assert a share in the property, starts from the position of having nothing and having to prove that they are entitled to a beneficial interest in the property because of conduct between the parties and statements made between them, which they have relied on to their detriment. The onus is on the non-owning party to prove these facts.

In respect of joint names cases, the land registry documents and the conveyancing file when the property was purchased are very significant. Before 1998, a couple could purchase property jointly without declaring in the transfer deed (now called a TR1) as to how that ownership would be split between them. This is known as a case where there is no express declaration of ownership. In 1998, however, purchasers were able to declare how they ‘hold’ the property, thereby expressly declaring their interests.

The latter is what we see on the whole these days and, unless there is an express declaration to the contrary confirming the shares in which the owners hold the property, the presumption that will be drawn by the court is that each party has a beneficial entitlement to half the property as the starting point. The onus is on the owner claiming an enhanced share to prove otherwise.

Matters of income, earning capacity as well as a host of other factors, are all relevant in respect of disputes between a married couple, and the family court is able to divide property (usually the family home) in whatever way would best meet the needs of the parties, with reference to the other assets, and with any children as the paramount consideration of the court. The Court of equity, in cases of unmarried couples, are not concerned with such matters and this can sometimes feel very unfair to the party trying to assert a beneficial interest or an enhanced beneficial interest.

We appreciate that things are not always straightforward when a relationship breaks down, and it is always worthwhile taking legal advice to understand the issues and the way ahead. Your solicitor can advise as to the merits of your case, depending on your circumstances, and the remedies available to you to resolve the issues.

These days it is increasingly more common for purchasers to be unmarried. Conveyancers should be asking their joint purchaser clients, early on in the transaction, to give informed thought to how they will share their beneficial interest in the property they are about to purchase, so that they have time to properly consider the question, and ensure that their intentions are expressly declared at the outset.

As with all the work we handle, disputes only ever usually arise on separation, at which time the issues crystallise at the very point when tensions are most heightened, and good and successful communication may seem difficult to achieve. Entering into a cohabitation agreement when couples jointly purchase property, can further regulate the financial arrangements and make things so much easier in the event of relationship breakdown and separation.

For further advice on this area of law, or for assistance through Family Mediation, please contact Louise Martin, Solicitor & Family Mediator, at louise@onionsanddavies.co.uk or call 01630 652405 for an appointment with Louise.