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Important Considerations for Co-habiting Unmarried Couples

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Important Considerations for Co-habiting Unmarried Couples

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It is becoming more and more common for unmarried couples in England and Wales to live together. Where property is owned by one or both parties, it can give rise to a complicated dispute if the relationship ends.

Contrary to popular belief, there is no such thing as a "common law marriage", and if the relationship ends, the couple will not benefit from the protections afforded to married couples under the Matrimonial Causes Act 1973.

Disputes over property owned by co-habiting couples are instead dealt with under Property Law.

Before buying a property

If you plan to purchase a property with a partner, you may wish to consider the following means of protecting your interests:

  1. A Declaration of Trust. If you will be contributing to the cost of the property in unequal shares, or need to record exactly how the property it to be owned, it is advisable that this is recorded within a deed known as a declaration of trust. The existence of the deed can be registered with the Land Registry, and this will assist both parties in the event of a dispute in the future.
  2. A Co-habitation Agreement. This Agreement is legally binding if correctly drafted. It can set out the financial position of you and your co-habiting partner, and what should happen if you were to separate.
  3. Make a Will. Co-habiting partners won't necessarily inherit from each other's estate. In other cases, they may inherit property from the estate which may not have been the intention of the Deceased partner. It is important make a Will to ensure dependants such as children are sufficiently provided for. This can avoid lengthy and costly disputes in the future.

Upon Separation

If your relationship with your co-habiting partner breaks down and a dispute over jointly owned property arises, you should seek advice from a specialist Property Litigation Solicitor.

A Solicitor can assist with negotiating a fair settlement between the parties and drafting a binding agreement to govern how the proceeds from the sale of jointly owned property are to be split.

Co-habiting couples who have children should seek advice from a Family Solicitor who can advise on applying for an order from the Court seeking provision for children, including allowing one parent to remain at the property whilst the child is under 18.

It may be appropriate, in certain disputes, to apply to the Court for a declaration of your share in the jointly owned property by virtue of legislation known as the Trusts of Land and Appointment of Trustees Act 1996 ("ToLATA").

Under ToLATA, the Court also has the power to make orders such as:

- An order forcing the sale of land or property.

- An order that allows one party to regain access to a property if the other party refuses to leave.

- An order allowing third parties, such as parents or grandparents, to recover their financial interest in a property owned by the separating couple.

However, a Court application under ToLATA does have its limitations, and the Court cannot award a share of the property in the same way as under matrimonial law. The Court will need to consider theexpress agreement between the parties, or the intentions of the parties from the outset.

If you require advice on issues involving a property dispute between co-habiting partners, please contact our specialist private disputes solicitor, Selica Khan on 01922 728110 or

Selica Khan, Solicitor, Civil Litigation, Enoch Evans LLP

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