Mr Joydeep Chatterjee, Head of the Matrimonial Department,
looks at the Current Law in Relation to Unmarried Couples...
The most recent statistics suggest that around four million people co-habit in England and Wales. This represents an increase of 67% in the last ten years; furthermore around just under half of these people have a child or children.

It is also anticipated that one in six opposite sex couples co-habit without marrying but by the year 2031 this figure is expected to rise to one in four couples.

Accordingly one of the increasing areas where I am being asked to advise people is on what rights un-married couples have against each other when there is an unfortunate breakdown in the relationship.

It is a common misconception in this country that there is such a thing as a “common law marriage” and/or the common law wife which is often referred to which people believe gives unmarried couples similar rights to those of their married counterparts. However this is certainly not the case, regardless of the length of the relationship, and this fact is only discovered by many unmarried couples when the relationship comes to an end.

Most of the reported cases which have gone to Court concerning couples who are co-habiting and have separated relate to the ownership of the home in which they live together. The law at the present time places the emphasis on direct contributions which has been made by a party.

The effect of this is that if there is no written agreement between the parties then the other party who does not own the property will only be able to acquire a share in the same if they can show proof of direct financial contributions such as by way of a payment of a capital sum towards the deposit or actual payments of parts of the mortgage installments.

This assumption leads to major problems firstly, no Court would look at other indirect contributions such as contributions towards bills and the role of a parties non-financial contributions such as caring for or bringing up children and looking after the house, something that is recognised within the context of couples who are in a married relationship.

In April 2007 the proprietary rights of unmarried co-habiting couples was looked at in detail in the House of Lords case of Stack-v- Dowden in which the Courts laid down guidelines as to how future cases about co-habitee’s rights would be decided and it was hoped that this would lead to greater certainty.

It was concluded that there would be a presumption that:

a(i) In cases where only one of the parties owns legal title to the property and is therefore recognised in law as being the 100% legal owner of the property and entitled to all the proceeds of sale, this would continue to be the case. The onus would then fall on the other party to show that he or she has made any financial contribution that will give them a beneficial interest in the property and to what extent.

b(i) In most cases where there is joint legal ownership of a property by an unmarried couple, joint beneficial ownership would be the starting point whereby they are each entitled to 50% of the proceeds of sale. If one of the parties wishes to show that the beneficial interest is to be divided other than equally then the onus would fall on that party to prove and establish why.

There would only be a departure from this presumption in very specific circumstances and it would suggest that the following points should be borne in mind

(i) Questioning their joint ownership was not simply “what was the extent of the parties beneficial interest” but did the parties intend their beneficial interest to be different from their legal interest” and if so to what extent and in what way.

The type of questions which need to be asked when the parties intend the beneficial interest to be held other than 50/50 are:

It was also made clear that when a couple are joint owners of the home they are jointly liable for the mortgage, the inference to be drawn from who pays what may be different from the inferences to be drawn when only one is the owner of the home.

Further calculations as what was actually contributed by each of the parties would also be significant where the home was owned jointly by the parties.

Further guidance can be obtained from the nature of the parties conduct and the attitude generally towards their property and finances.

The Government are currently looking into the possibility of changing the present legislation and the Law Commission are currently looking into this.

If you would like any further advice then please contact Mr Chatterjee on 0208 646 4885 or email jay@preuveneers.net or his secretary Nikki Joy. Appointments are available in Mitcham, Crawley or in our Wimbledon Consultation room.

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