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BLOG: Unmarried and living in your partner’s property – what are your rights?

Simon Higgs, relationship breakdown

There are now more than 3.3 million unmarried couples who live together in the UK. This is the fastest growing family group and since the mid 1990’s the number has more than doubled.

“Common Law Marriage”

Amongst unmarried couples there is a widespread belief that a “common law marriage” is formed when they begin cohabiting, which provides them with legal rights in the event of their relationship subsequently breaking down.

This is a misconception as the law does not recognise the concept of common law marriage. Therefore the legal position in the event of relationship breakdown is very different for unmarried couples compared to married couples.

Married couples

In the case of married couples who are separating the Court has a wide discretion and can adjust ownership of any matrimonial property, all with the objective of achieving an outcome that is fair.

Unmarried couples

Unmarried couples who have separated face a very different situation.

Crucially, their rights in relation to property are principally guided by general principles of property law rather than fairness. In the case of property owned by a former partner, it is necessary to establish a common or shared intention of having a financial or beneficial interest in the property which can be actual, inferred or imputed in light of the parties’ whole course of conduct.

This is however a complex area of law and it is not uncommon for the difficulties to be compounded by the lack of documentary evidence, meaning cases have to be largely decided on the basis of one party’s word against the other.

It is not always possible to establish a common intention which sadly can result in some very unfair outcomes. As a consequence there have been cases where, even after relationships have broken down after decades and the parties have brought up children together, one of the parties has been left financially destitute.

Future changes to the law

As long ago as 2007 the Law Commission made a number of recommendations for reform. Whilst there are some dissenting voices, there is now a broad consensus across the political spectrum that the law in this area is out of step with changes in society in recent decades and therefore in need of reform.

The recently announcement divorce reforms are a sign that the government acknowledges the need to bring family law into the 21st century. Hopefully therefore reform of the law in relation to unmarried couples will be similarly prioritised.

What to do in the meantime?

Whilst undoubtedly unromantic, and in the real world possibly unrealistic, if you are living in your partner’s property (or are thinking of moving in) try and have an open and up front discussion – if ultimately things don’t work out this will be for your mutual benefit.

If this isn’t possible at least be aware of your legal rights and, if you are making a financial contribution, make sure you keep a record of it.