Property Rights when Separating from a Partner

What property rights do you have when separating from a partner you have been cohabiting with? Nowadays, it is common for couples to cohabit without getting married or entering into a civil partnership. It is also not unusual for someone to move into a property already owned by their partner. Often, one person will continue to own the property, while the other lives there and contributes in various ways. However, there is currently no law in England and Wales which deals with the breakdown of relationship for unmarried partners.

This raises important questions about rights after separation, especially if a property is only in one name and not both. So, what happens if things go wrong? Do you have any rights to your partner’s property?

Do I have a right to stay in my home?

Married couples can rely upon family law to deal with relationship breakdown or divorce. Unmarried couples’ options are much more limited, seeing them rely upon trust and land law.

Generally, the individual who does not own the property has few rights when it comes to staying after a break-up. Essentially, they can only stay there at the discretion of the owner. Should the owner wish their partner to move out, all that is legally required is ‘reasonable notice’. Once this notice period is over, the non-owner would be considered as trespassing.

However, a non-owning cohabitant may be able to demonstrate that they have a right to remain on one of three principles:

• beneficial interest
• a contractual or irrevocable licence
• rights by estoppel

Beneficial interest: seeking a share or right to remain in the property

Beneficial ownership is different to legal ownership. A legal owner is the individual, or individuals, who are named on the title deeds to the property. They have the authority the sell, mortgage, or otherwise dispose of the property. A beneficial owner is someone who is entitled to enjoy the benefit of the property by occupying it. They would receive a share of the proceeds of sale if the property were sold.

To establish property rights in the form of a beneficial interest, it is possible that there might be written evidence showing the couple’s agreement about the ownership of the property when the non-owning cohabitee moved in. For example, a document might be drawn up to agree that the property is held in equal, or unequal shares.

Where there is no written evidence, the parties’ actions and intentions will need to be considered. For example, this might include whether the non-owning cohabitee has made any significant contributions towards the mortgage or home improvements.

Clear evidence is required to prove that the parties’ intentions differed from the ownership documented in the property’s title deeds.

What if I contributed towards the cost of the property?

If you contributed towards the cost of the property, either at the time of purchase or at a later date, you may be able to establish a ‘resulting trust’ or a ‘constructive trust’. Both of these are forms of property rights.

A resulting trust arises when payments towards the purchase price of a property were made at the time of purchasing. Even if the property is in your partner’s name, you could still have made financial contributions to the property’s purchase. In this situation, a ‘trust of land’ would arise, with the contributing parties being entitled to beneficial interests in proportion to their contribution to the purchase price.

A constructive trust may arise when contributions towards the property consist of payments of the mortgage instalments, or other expenses after the purchase of the property. Here, evidence would be required of the sole owner expressing an intention to share the property with the non-owing cohabitee.

My ex and I had an agreement to share the property

Intentions to share a property can be ‘express’ or ‘inferred’.

An express intention is where the parties have made a declaration of how they intend to share the property through signing a written agreement or a trust deed. For example, your former partner may have purchased the property independently and put the mortgage in their name, but signed an agreement that you were entitled to a share in the property. Providing that there is no evidence of fraud or mistake, this written agreement would be enforceable by the Court

An inferred intention is where the non-owning cohabitant may have made direct contributions towards the cost of acquiring the property. For example, contributing towards mortgage repayments. A key case in this area is Lloyds Bank vs. Rosset, which finds that anything less than direct contributions towards the mortgage would be insufficient for a common intention to be inferred. It is more difficult to establish property rights where an intention must be inferred because of this evidential bar.

What if I have paid for renovation work on my partner’s property?

In recent years, there have been a number of cases in which non-owning cohabitants have attempted to establish property rights by arguing that they had contributed significantly to the value by investing heavily in renovation work. Judges have ruled that this is not enough evidence of an inferred common intention. That is because, in the context of the relationship at the time, the property would have been considered a long-term residence for the couple and any children.

In many cases, it can be difficult to ascertain whether a beneficial interest has arisen. Especially where there might be a disagreement between the parties as to what exactly was agreed. In this situation, it would be necessary to apply to the Court for a declaration. However, in light of the courts being reluctant to grant beneficial interests in properties, it would be helpful to seek expert legal advice to clarify your position.

I gave up my home to care for my partner’s children

A contractual or irrevocable licence can occur when, for example, someone gives up their home to move into their partner’s property for the purposes of looking after their children, on the understanding that they could live there while the children were of school age.

If proven, this agreement would entitle the non-owning cohabitant to be able to stay until the occurrence of the agreed event. For example, the children leaving home, unless a situation arose which made it unreasonable for the non-owner to stay. However, it can be difficult to establish and prove contractual or irrevocable licences.

Rights by estoppel: a verbal agreement to a property right

Rights by estoppel involve a verbal agreement being reached between the separating couple. A representation or promise must be made to the non-owning cohabitant that they will be entitled to an interest in the property. The non-owner must then rely upon this agreement to their detriment. For example, the non-owner could leave their job or home on the basis they would receive an interest in their partner’s property.

There is a high evidential bar for this type of claim.  This is because there must be evidence of mutual expectations. In addition, the conduct of the sole owner must reflect the non-owner’s expectation that they are entitled to a share. This can often be difficult to prove upon the breakdown of a relationship. For example, the sole owner could argue they had a different intention to that of the non-owner. A Court would then weigh up all evidence to decide which was more compelling on the balance of probabilities.

This is a complex legal area, and one which requires specialist legal advice. At Coodes, we are handling a growing number of cases in which people want to claim a right to a former partner’s property. My colleague, Darren Higginson, explored the topic and  different scenarios for unmarried cohabitating couples in his recent blog.

For more advice, please contact Jenny Carter of the Personal Disputes team on 01566 770008 or jenny.carter@coodes.co.uk