The decline of marriage: what property law rights apply to unmarried cohabitees?


26 April 2019

Statistics released on 28 March 2019 by the Office of National Statistics show that the number of marriages taking place are at an all-time low. Marriage rates have been declining gradually since the 1970s, with statistics showing that young people are putting off marriage until much later in life. 

Why the decline? There are plenty of theories. Some say that higher divorce rates are putting younger generations off the idea of marriage. The expense of the wedding itself may also be a factor. Plenty of people are instead choosing to spend their money on education, travel, experiences… and property. 

When unmarried couples buy property, their rights in respect of that property are governed by strict property and trust law principles. The position is very different for married couples, where, upon the breakdown of the marriage, property is dealt with under the Family Law Act 1996, with reference to what is fair and the respective needs of the parties.

There is no equivalent legislation for unmarried couples. The relevant law (i.e. the law of trusts) has evolved over time, and is highly complex. It can be summarised briefly as follows: 

if your name is on the title deeds, it is presumed that you have an interest in the property itself (i.e. a right to live there and to have a share in the sale proceeds); and

if your name is not on the title deeds, depending on the circumstances you might have an interest in the property. These circumstances include, for instance, whether you contributed towards the purchase price or the mortgage, and whether there was an understanding between you and the legal owner that you would have an interest. 

Living in your partner’s house does not automatically give you a right to remain living there, or a right to share in the sale proceeds. The fact that you have been together a long time, raised the children, helped with an extension, paid for the utilities and so forth might also be irrelevant. The notion of ‘common law marriage’ is a widely-believed myth. 

If you are thinking of cohabiting; you already live with your partner; or if your relationship has broken down, Birketts can advise you on your legal rights and options. One option, which is often appropriate, is to enter into a document called a declaration of trust, setting out clearly the rights and obligations of the parties in relation to the property. 

The content of this article is for general information only. If you require any further information in relation to property disputes with an ex-partner or cohabitee, please contact Laura Tanguay on 01473 299188 or [email protected]. Law covered as at April 2019.