When unmarried couples split: what happens to your property? « McAlister Family Law


When unmarried couples split: what happens to your property?

Aaron Williams


How many people use the phrase "common law wife" or "common law husband" to refer to the person with whom they cohabit, but have not married? The times when I hear it most often is when it is being used by unmarried couples who separate. 

First things first. There's no such thing as a "common law spouse".  It is a common misconception that couples who live together for a number of years and have children together acquire legal status akin to married couple, but such a concept has no legal recognition. Following the breakdown of a such a relationship, it can come as a shock to the parties concerned when they discover they are not protected by the same law that applies to married couples, namely, the Matrimonial Causes Act 1973

Disputes between separating couples fall predominantly into one or more of the following scenarios:

  • Claims against the legal owner of the property by an ex-partner not named in the title documents: most often these are claims by an ex-partner who buys a property with their partner during the relationship, or who move in and naïvely assume that cohabitation alone will bestow some legal status or benefit without their being on the title
  • Disputes as to the extent of beneficial ownership between joint legal owners, where there is no legal documentation specifying in what shares the property is to be held - such as a "declaration of trust"
  • Disputes between former cohabitees (usually where they have children) as to whether a property should be sold at the breakdown of their relationship
  • Accounts, that is, disputes about whether one or other party is entitled to recompense for extraordinary contributions made before or after the breakdown of the relationship.


Unlike the wide-ranging discretionary powers afforded to the Family Court that provides for the division of assets for married couples, especially in scenarios where one party is not on the title for the family home, the division of property for cohabiting couples is governed by the law of contract. The court’s powers under a TOLATA (The Trusts of Land and Appointment of Trustees Act 1996) are generally quite narrow

  • it can order a sale of a property
  • it can decide who is able to live in the property (but its scope is limited)
  • it can declare what the parties’ beneficial shares in a property are, but it cannot vary them.

Beneficial interest in a property

In limited circumstances, where a property is registered in one party’s sole name, the "non-owning" party can make an application to Court to establish that they have a beneficial interest in the property. Such an application would be made pursuant to the very complex law of equity. 

For the non-owing party to establish they have a interest in the property they would need to show the following:

  • There was a common intention to share ownership despite the property being registered in one party’s sole name
  • The non-owning party has acted upon that common intention to share the property to their detriment

A non-owning party ordinarily establishes that they have acted to their detriment by showing evidence of their financial contributions toward the purchase price of the property, such as mortgage payments, or by showing significant contributions to home improvements - perhaps building an extension, payment for landscaping, or double glazing and so on.  When the contributions to the property are more commonly of a nominal value, such as redecorating, or paying an apportionment of bills, it is harder to prove that a party has acted to their detriment.

What is your share?

Provided that the first requirement is overcome by establishing that these principles apply, the next hurdle is establishing what the shares in the property should be. Unlike divorce proceedings, the division of assets is not made on a basis of need. TOLATA applications can be complex and are often very fact-specific; to establish the shares in the property, the Court look to what were the parties’ original intentions. Such intentions are established either from direct evidence, or by inferring what the parties’ intentions were from their conduct - this inference can be made even when the parties themselves were not clear on respective shares in the property.

Separation itself is stressful enough, and as you can see from the information outlined above, an application of this nature may seem a complicated and daunting task on top of the emotional pain. Our priority is to ensure we help you navigate this legal minefield and where possible, help you reach a swift and amicable resolution.


For advice on the implications of separating from an unmarried partner, please contact us today to speak to one of our expert solicitors.

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