We've lived together as common-law husband and wife. Do I have rights over my home now we're separating?

As shown by our survey, Mythbusting Common-Law Marriage,  many people believe that unmarried couples who live together for a number of years have the same rights to property and financial support on separation as married couples. But there is no such thing as a common law marriage and the laws applied to divide a cohabiting couple’s property are very different from the laws used to divide a married couple’s assets. 

Married couples, on separation, have a claim over each other’s property, regardless of whose name it is held in. This is not the same for cohabiting couples where the starting point is that a property (including the family home) belongs to whoever has their name on the legal title.

This is straightforward where the legal title to the family home is held in your and your partner’s joint names: you will own the property 50:50 unless there is clear evidence that you have agreed something else.  

Problems arise if your home is held in the sole name of one of you. Unfair as it may seem, if your name isn’t on the legal title, unless you can agree it with your partner, or convince a judge that you have a “beneficial interest”, your home doesn’t belong to you. In turn this means you are not entitled to any money from it – whether that’s a share of the net sale proceeds if the property is going to be sold or your partner “buying out” your share if they want to continue living there by themselves. 

To establish a beneficial interest, you will either have to show:

  • that you have contributed financially to the property (e.g. by making  mortgage payments, paying the deposit or paying for improvements); or
  • that you and your partner agreed that you would own the property jointly.  You would need to prove the existence of such an agreement, and/or any financial payments, by providing evidence.  Otherwise, it is your word against your ex’s.

Going to court is a costly process, both financially and emotionally. To avoid future disagreements, if you’re living together or you’re thinking of moving in with your partner without getting married, it is sensible to sign up to a cohabitation agreement [link] which clearly sets out how you will divide your assets in the event that you separate. The team at Mills & Reeve have lots of experience in drafting these agreements so do please speak to us. 

Kris Arpon