There is no such thing as a ‘common law spouse’, so you cannot acquire rights against your partner simply by virtue of your cohabitation. It is only marriage or civil partnership that brings about financial obligations as an automatic consequence of the relationship; unmarried couples do not benefit from these rights.
In what circumstances can a claim be made by an ex-cohabitee against a property?
There are a number of claims that may be made depending on the circumstances of your case. In the first instance, it is important to establish the identity of the legal owner(s), i.e. those persons named on the deeds or at the Land Registry as being the owner(s). If the property is owned solely in the name of your ex-partner, you may still have a claim against it (and vice versa, if the property is owned solely in your name).
If the property is owned in both of your names, what share you will each receive in the property (and thus, the sale proceeds), will depend on whether you purchased the property as 'joint tenants' or ‘tenants in common’. You may remember being asked this by your conveyancer – often the question is posed with reference to inheritance. It is usually apparent from the Land Registry title whether you purchased as tenants in common or joint tenants.
If you purchased as joint tenants, you will each be entitled to 50% of the property. If you purchased as tenants in common, it is possible that you own the property in unequal shares. We would need to check whether a ‘declaration’ was made when buying the property about what your shares would be. The Transfer Form, which you would both have signed upon buying the property, is likely to contain the declaration (if you made one) in the form of a tick-box panel (although this will depend on how long ago you purchased the property). It is not mandatory to complete the panel, but if you did then this will be binding (save in some limited cases, such as where there is evidence of fraud). If you did not make a declaration, it will be presumed that you own the property equally, but it is possible to rebut this presumption, having regard to the whole course of dealing between you.
Property claims of this nature are dealt with under the Trusts of Land and Appointment of Trustees Act 1996. This is a complex area of law, the application of which will depend heavily upon the individual circumstances of your case. You would need to provide clear instructions about the history of your relationship, your joint intentions about the ownership of the property and your contributions to it, to enable advice to be given on your property rights and the prospects of any claim.
Is it possible to force the sale of a property?
If you or your ex-partner refuse to sell the property, an application may be made to court for an order requiring the property to be sold. Such applications are also made under the Trusts of Land and Appointment of Trustees Act 1996.
The court must have regard to several factors when deciding the application, but where a property is owned by a couple whose relationship has since broken down, the court will usually order a sale. The situation is a little different if there are children living at the property, as this is a relevant consideration under the legislation. If you have children together, it may also be possible to make a claim under Schedule 1 of the Children Act 1989 (which can include a claim for housing).
Can I (or my ex-partner) recover mortgage payments and expenditure?
This will depend on a number of factors, such as whether you own the property as joint tenants or tenants in common (see above). Generally speaking, the court will not entertain claims for a ‘refund’ of mortgage payments or refurbishment costs made during the course of the relationship. The court may, however, award an ‘equitable account’ to reflect any imbalance caused by exclusive occupation of the property or payments made following your separation.
The content of this article is for general information only. Property law principles (rather than family law principles) apply to disputes of this nature, and therefore unmarried relationship breakdown cases are handled by our experienced Property Litigators, Laura Tanguay and Richard Eaton, who specialise in this area. Law covered as at January 2017.