Separating from a partner you live with

The law surrounding cohabitating partners is a minefield and the unfortunate reality is that when such relationships break down, disputes can arise.

If you are married, in a civil partnership or have children under the age of 18 living with you, then our Family Law team would be pleased to assist you. Please contact us for more information. 

This article discusses the legal position when unmarried partners live together, or friends or family co own a property together. There is no such thing as a common law marriage.

If your cohabitation ends and you cannot reach an agreement as to what happens with your property, you may consider a formal resolution involving solicitors, which can include bringing a claim under the Trust of Land and Appointment of Trustees Act 1996, known as a ‘TLATA’ claim.

What rights do I have?

It’s important to carefully consider the circumstances of your joint occupancy. Separating cohabitees may not be fully aware of the extent of their rights relating to the property.

If cohabitees share legal ownership of the property in their joint name, they either have a “Joint Tenancy” or “Tenancy in Common”.  

If you are joint tenants, both cohabitees are equally entitled to the whole of the property. Ownership will be equal (50:50) unless factors set out below change the position.

Tenancies in Common either set out the percentage of ownership or start with a presumption of equal ownership (50:50). Sometimes partners agree how they split their ownership in a Declaration of Trust or other legal document.

If a property is legally owned by only one partner, there can be an agreement that the other partner has partial ownership or factors such as the below may lead to a claim for a share in the property.

Factors that may change ownership

Common scenarios include:

1: A Claimant has contributed money or value directly to the purchase price of the property, and/or that there was a common intention to “own” the property in proportion to those contributions and/or acted to their detriment and this was not just a gift (e.g. you contributed  10%, 25%,50% etc.)

2: The legal owner has led the Claimant, by conduct or written or oral words, to believe that they have a partial “ownership” or right to some money out of the property and because of what was said or done the Claimant has acted to their detriment, making it unreasonable for the legal owner to argue that they have total beneficial ownership of the property.

Examples of facts that can change the legal paper ownership include:

  • Regular mortgage or other payments
  • Paying heating, grocery and/or electricity bills
  • Carrying out or paying for work to a property, e.g., improvements or maintenance
  • Non-financial contributions
  • Informal agreements and understandings

Detriment includes spending money but can sometimes include other factors such as childcare, caring for relatives, not buying another property, changing or staying in a job, etc.

How can Court help me?

Courts have powers in TLATA claims in relation to properties occupied by cohabitees. This can involve determining:

  1. Who owns what shares in the property
  2. Whether the property should be sold
  3. Who is entitled to occupy the property
  4. Whether other parties such as parents or grandparents can recover any money loaned.

The Court will have regard to all the interests of any beneficiaries when exercising any of these powers, so it may be helpful to take legal advice to consider who may have rights to any aspect of the property before starting negotiations with a partner or commencing any proceedings.

What other options are there?

Bringing Court proceedings can be very costly, stressful, and emotionally draining. If you have been unable to resolve your dispute informally, we can assist you to consider a form of Alternative Dispute Resolution such as mediation or arbitration which can be faster, cheaper, and more private.

If you own a property as Joint Tenants but one of the owners dies, the whole of the property passes to the surviving partner. To avoid this situation, there is a simple process to convert the ownership to Tenants in Common and a presumption of 50:50 ownership or the partners can seek to agree or seek a Court order to determine another split.

How to avoid a dispute

Our solicitors can assist you in clearly documenting how a property is owned either before buying or after the purchase if both sides agree.  We can assist you in negotiating a resolution with your partner.

What to do if you get into a dispute

Disputes over the property of separating cohabitees often arise in the immediate aftermath of separation and can be complex and emotionally charged.

If you find yourself in a dispute, or you want to understand your position before a dispute arises, we can provide professional advice to help you navigate the legal issues and achieve an efficient resolution.

For more information on the contents of this article or advice on the issues raised, please ​contact us to speak to a member of our Dispute Resolution Team.

Edward Jones
Legal Director, Dispute Resolution
View profileContact Us

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Latest Legal Insights

Best Law Firms 2024

Herrington Carmichael has once again been named in the Times Best Law Firms. We were first listed in 2023 and have once again made the Best Law Firms list for 2024.

Best Law Firm 2024