When unmarried couples split: what happens to your property?

How many people use the phrase “common law wife” or “common law husband” to refer to the person with whom they cohabit, but have not married? The times when I hear it most often is when it is being used by unmarried couples who separate.

“Couples who live together – and perhaps have children together – are not protected by the same laws that apply to married couples.”

Aaron Williams, assistant solicitor

First things first. There’s no such thing as a “common law spouse”.  It is a common misconception that couples who live together for a number of years and have children together acquire legal status akin to married couple, but such a concept has no legal recognition. Following the breakdown of a such a relationship, it can come as a shock to the parties concerned when they discover they are not protected by the same law that applies to married couples, namely, the Matrimonial Causes Act 1973.

Disputes between separating couples fall predominantly into one or more of the following scenarios:

  • Claims against the legal owner of the property by an ex-partner not named in the title documents: most often these are claims by an ex-partner who buys a property with their partner during the relationship, or who move in and naïvely assume that cohabitation alone will bestow some legal status or benefit without their being on the title
  • Disputes as to the extent of beneficial ownership between joint legal owners, where there is no legal documentation specifying in what shares the property is to be held – such as a “declaration of trust”
  • Disputes between former cohabitees (usually where they have children) as to whether a property should be sold at the breakdown of their relationship
  • Accounts, that is, disputes about whether one or other party is entitled to recompense for extraordinary contributions made before or after the breakdown of the relationship.
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