Living Together But Not Married - What Happens When We Split?

In the UK, the number of couples living together but not married has become increasingly common. This is especially true for couples that purchase properties even when not married or in a civil partnership.

This can cause a whole myriad of issues when the relationship breaks down. The biggest issue is that unmarried couples do not have the same rights as married couples in respect to financial proceedings.

This blog will outline your rights if you and your partner are living together but not married. I’ll cover how you compare to a married couple, what the key issues are and how to establish a fair share for both parties.

How do our rights differ to married couples?

For couples that are living together but not married, it’s hard to determine who gets the property upon separation. That’s why it is important to first compare how property is dealt with upon separation of married couples.

When a couple marries, all assets, regardless of being solely or jointly owned, become marital assets. However, this is only if the marriage is a ‘long marriage.’

There is no legal definition of a long marriage, but a marriage is usually seen to be long if lasting for over 10 years. Moreover, the couple should have significant financial ties to one another, although there may be arguments that can be raised to rebut this.

This rule also applies to property, particularly the property in which the parties reside (i.e. the family home). This is the case even if one party was the sole owner prior to the marriage.

During financial proceedings, the parties can decide how the property is to be dealt with. Possible solutions may be:

1. one party buys the other out for an agreed price
2. the property transfers into the sole name of the other
3. the court orders one party to pay the other out
4. if there is no alternative option, the court orders the property to be sold.

There are also further considerations if children are involved.

As family proceedings do not apply to couples that are living together but not married, the parties must usually engage in civil proceedings. There is a mechanism under Schedule 1 of the Children Act 1989 that can allow a party to bring a claim in the family court.

Who owns the property when living together but not married?

The way in which an unmarried couple owns a property will be important in determining how it is split. They can own a property in two ways:

1. Joint tenants
2. Tenants in Common

If the parties are joint tenants, then the parties will have an indivisible share in the property. This means that meaning that neither party owns a specific percentage. If this is the case, the parties may need to make an application to court to determine their respective shares.

In contrast, if the parties are tenants in common, a Declaration of Trust would have been prepared. This sets out how much of the property each party owns, thus making clear what each party is entitled to and helping the parties avoid a determination from the court.

Using a TOLATA application.

Couples who are living together but not married may be unable to come to an agreement on how to deal with their property.

If so, a party can make an application to court under TOLATA by:

1. asking the court to determine each parties’ respective share if they are joint tenants
2. asking the court to make an Order for Sale.

If successful, you’ll then start to establish who owns what shares of the property.

How can we establish shares of the property when living together but not married?

If the parties are joint owners and cannot agree on their respective share of the property, TOLATA allows them to ask the court to decide this. The parties will need to persuade the court what their shares are, and why this should be the case.

Evidence that a party may submit to support their claim of receiving 50% or more of the property include:

• Demonstrating that they paid a higher percentage of the deposit or price of the property
• Showing that they are the sole payer, or pay a higher contribution to the mortgage than the other
• Demonstrating that they have invested more money into the property than the other. An example of this may be where one party has paid for an extension or redevelopment works which has boosted the value of the property. Our Managing Director Paul Britton successfully ran this argument in the nationally publicised case of Powell v Thomas.

If the parties are tenants in common, then this step is not necessary as it should be clear what share of the property each party owns.

Using orders for sale.

A party can use TOLOTA to ask the court to grant an order for the sale of the property. There may be several reasons why you may need an order for sale. For example:

• one party has agreed to pay the other out, however, they do not have the capital to do this
• a party refuses to sell the property which frustrates both parties’ ability to move on from the separation
• there is an outstanding charge or mortgage on the property that needs redeeming, and a party is frustrating the sale, causing the risk of repossession.

If you were previously in a relationship living together but not married, and find yourself in this scenario, it’s important to get some legal advice to know your standpoint.

What if children are involved?

Couples that are living together but not married may take an alternative route if children are involved with their separation. Because of this, a party may be able to make an application under Schedule 1 of the Children Act 1989.

If a party is successful, the court may be reluctant to order the sale of the property to protect the interests of children.

Making or defending a TOLATA application when living together but not married.

Making or defending a TOLATA application can often require a complex legal argument because it is rooted in trust law. Before instigating court proceedings, couples that are living together but not married are encouraged to make attempts to negotiate and settle to prevent legal costs, time and stress.

However, there is no reason why you cannot use complex legal arguments at the negotiation stage. If there’s any way of resolving a dispute early, it’s always best to try.