Introduction
Unmarried and breaking up
The breakdown of any relationship is difficult, but it can be tough when it is unmarried couples and the financial feature is uncertain. Furthermore, unmarried couples in England and Wales are not protected by the same laws as married couples. For legal insights into cohabitation couples, read about cohabitant claims.
This article briefly explores what happens with property upon the breakdown of a relationship between two people who were not married. This is one of the most significant issues for separating unmarried couples. We also explore a few recent interesting court cases that might be shaping the future.
The Trusts of Land and Appointment of Trustees Act 1996 for unmarried couples
Unmarried couples cannot rely on matrimonial law.
Also known as TOLATA, this law gives the Court certain rights to resolve conflicts around property and ownership.
Anyone who has an interest in a property can use TOLATA to get the property or residence to be sold and determine who owns precisely what or who has the right to occupy a home. Third parties, such as parents or grandparents, can also recover their financial interest in a property owned by the separating couple.
The court is quite strict under the TOLATA law and will look at the parties’ intentions when acquiring the property or what was expressly agreed upon.
The lay of the land
Cohabitation in England and Wales has become increasingly common over the last few years and is expected to become even more widespread. Statistics estimate that there were about 3.5 million cohabitating couple families in the UK in 2020. With relationships, however, come unfortunate breakups. (Read more in our blog that explores new trends in modern families)
It’s all about property.
Three scenarios
Under TOLATA, the Court will look at how the property is owned as per the records at the land registry.
- Joint ownership in equal shares. If the shares of ownership have been expressly agreed upon between the parties, the Court will assume that each party owns half. It will be challenging for someone to argue differently, although there are limited grounds, such as proprietary estoppel, which solicitors might try to argue. (‘Proprietary estoppel’ is when someone was given a clear assurance that they will acquire a specific right over property.)
- Joint ownership but no agreement as to who owns what. The starting point for the Court will be that the parties are entitled to an equal share. If someone wants to argue they should receive a greater share, the party must prove their common intention when the property was purchased (or later.) One can deduce the common intent from the conduct and dealings of the parties. Each case is different, and the Court will decide what share each party is entitled to.
- Only one party owns the property. Here, the court will start with the assumption that the party who owns the property owns all 100% of it. If the non-owning party wishes to argue that they are entitled to something, the court will look at whether there was a common intention for beneficial interest to be shared, and the non-owning party has the legal burden to prove it.
Children and property
Should unmarried cohabitees have minor children, they can make an application to the court under the Children Act 1989. This allows the court to make provisions for such children, and the court will typically hear such an application together with the TOLATA argument. You might also be concerned about parental responsibility or child arrangements.
The court can then transfer property, allow a parent to remain in a property, or order a lump sum payment when the child is still a minor.
Interesting cases for unmarried couples
Stack v Dowden (2007) UKHL 17. In this key case, the precedent was set for what will happen to a property when a couple owned it jointly and wished to separate.
The couple here lived together for many years and brought the property together. They were both legal owners, and both contributed to purchasing the property. However, there was no expressed declaration of which share each owned. The House of Lords ruled that each was to get a 50% share unless one of the parties could show a clear contrary intention.
The Supreme Court case, Jones v Kernott (2011) UKSC 53, had almost the same set of facts, with the one key difference: the parties had a different intention at the outset about a 50/50 split. In this case, the court inferred (after taking into account the whole course of the parties’ dealings) that the one party was only entitled to only 10% of the beneficial interest after separation.
Dibble v Pfluger (2010) EWCA Civ 1005. The couple here broke off their engagement. This case reminds us that, according to section 2 of the Law Reform Act of 1970, property owned during engagement is subject to the same rules as between husbands and wives.
V and W 2020 EWFC 25. This unmarried couple had been in a relationship for 23 years. They had two children and had bought a home in Oxfordshire together. The couple was still living together, although the mum enclosed herself mostly in one bedroom with an en suite bathroom.
The mum turned to section 14 of the TOLATA and wanted the court to declare what part of the home she owned. Subsequently, she wanted the house to be sold. However, the father made an application under the Children Act 1989, asking for the mum’s share of the property to be held in a trust for their son until he finished his education.
Just before the final hearing, the father agreed that each party owned a 50% share in the property, leaving the issue of whether the home could be sold. The mum wanted it to be sold as soon as possible, whereas the dad had no clear idea what to do and wanted the house’s selling to be postponed for ‘seven to eight’ years.
The Court concluded that the dad was not practical and that it was not in the younger child’s best interest not to sell the house. So instead, the property was put on the open market and sold for the best price obtained.
Berger v Bell (2020) EWCA Civ544. After the unmarried couple separated, the female partner moved out of the family home. She sought a sale of the property under TOLATA because their house was to be a ‘family home,’ but there were no longer children living at home. The Court ordered the male partner to give up vacant possession of the property, and he could not interfere with any subsequent sale.
The male did not adhere to the court order and was later sent to prison for his breach. He appealed against his sentence. The Court dismissed the appeal, saying that the male would have continued to defy the order after freedom.
Bailey Dixon (2021) EWHC 2971. The property was jointly owned by a man and a woman who, at one point, were the carers of the man’s grandson, Joey. Joey’s mother had died, and the couple effectively became the son’s parents. The property was now a ‘family home.’ Initially, the property was the woman’s but came to be jointly owned by 2005. It was subject to a mortgage. The relationship between the parties broke up, and the woman left the property in 2006. The joint tenancy was severed only in 2016.
The man sought an order for sale under TOLATA. The woman resisted, saying that they should preserve the property for Joey’s benefit. She then applied for an occupation order under section 33 of the Family Law Act 1996. However, on appeal, she also wanted the man to pay occupational back rent as he lived alone on the property for several years.
The Court did not have a straightforward task, as there were strong feelings on both sides, a mass of witness statements and accusations, and cross-accusations. Finally, the court decided in the man’s favor and ordered the sale of the property. No order was made for paying occupational rent, as the man never forbade the woman to stay on in the home. The Court found no misdirection in law and that the woman was a wholly ‘unsatisfactory’ witness.
Conclusion
Relationship breakdown is complex for unmarried couples.
Therefore, it is essential for couples that are not married to understand the different scenarios that can arise depending on how property is owned in joint or sole names and whether there is an express declaration to who owns what.
At Robertsons Family Law, we have helped unmarried couples who are separating numerous times, and we can give realistic advice from the outset. For example, we can help with any questions about your rights as a property owner, advise you about your options, and the best way to proceed should you want to sell a jointly owned property. We can also help to obtain an order for sale. If you would like more information on the service that we offer surrounding cohabitation, read this page. If you want to speak to one of our family law experts, please contact us.
