On 27 November, the BBC reported that 3.3 million cohabiting couples could be “completely unprotected” upon the breakdown of their relationship, writes Laura Tanguay.
This week, the BBC warned cohabiting couples of the 'common law marriage myth’. It reported: “Millions of unmarried couples who live together could be unaware of their rights if the relationship breaks down”, and gave the example of Yvonne, who was with her ex-partner for 17 years and was shocked to find out she was entitled to nothing upon the breakdown of her relationship.
Despite the common misconception, there is no such thing as 'common law marriage'. People in a relationship who are not married or in a civil partnership do not benefit from the same set of rights and entitlements – even if you have been in a relationship and living together for a very long time.
When it comes to divvying up property assets, therefore, if you cannot agree between you about what should happen, the court will determine your respective entitlements based on the strict application of property and trust law principles. The fact that you have raised the children, paid for the utilities, built an extension and so on may not be relevant to the court’s decision.
The first thing to establish is in whose name the property is owned. The property might be registered in both of your names or in only one name. However, if you are not on the title deeds, this does not necessarily mean that you have no entitlement to the property. This will depend on what was agreed or understood between you in respect of the property.
Some couples choose to create written agreements known as ‘trust deeds’ or ‘declarations of trust’, and these documents are typically conclusive of your respective entitlements unless and until they are updated by a subsequent written agreement. (These agreements can still be set aside in instances of fraud, duress, undue influence or mistake, but these scenarios are fairly uncommon.)
The absence of a written agreement is not, however, fatal. It may be possible to establish a common understanding / agreement between you that the non-owning party would have a share in the property, based on your conduct or what you said to one another. In other words, setting everything out in writing is not a requirement (although it is obviously sensible to do so in order that everyone is clear from the outset about how the property will be shared).