“I AM A COMMON LAW SPOUSE – AREN’T I?”

As family law experts in West Yorkshire we frequently advise unmarried couples who mistakenly believe that because they have lived with their partner for a number of years they are a common law spouse and therefore have the same rights as married couples on the breakdown of the relationship.  In reality this is a myth; there is no such thing as a common law husband or wife.

More and more people are cohabiting as opposed to marrying and yet unmarried couples have no legal or financial responsibility towards the other on the breakdown of the relationship.  This can produce some very unfair results irrespective of whether the parties have children.  If financial contributions have been made towards the property, a claim may be brought.  However, as with all things this is not straight forward.

Any dispute about the ownership of property is governed by the Trust of Land and Appointment of Trustees Act 1996.  Anyone who considers they have a beneficial interest in the equity of a property, regardless of legal ownership, can ask the Court to declare the extent of their interest in that property.  However, extreme care is needed in deciding whether to bring or defend a claim to ensure there is a good legal basis for doing so because there will be cost consequences for the losing party.

If a property is owned in the sole name of one party the person bringing the claim must establish that there was an intention to share the property and they have contributed financially to the property and/or acted to their detriment in reliance on that agreement to share.  It therefore is not sufficient to simply assert a financial contribution, which may be relatively easy to prove, there must also be an intention to share.

The Court will ask the following questions in considering that issue:-

1. Is there a written record of the parties’ intentions?  If so, this is usually conclusive.

2. If not, was there an intention to share?  This could be evidenced by verbal discussions or imputed from conduct.

3. If so, was any detriment suffered by the party asserting there was an agreement to share?  Detriment does not have to be directly related to the purchase of the property but it must go beyond what would ordinarily be expected of a cohabiting couple.

If the Court is satisfied of the above then it will go on to quantify the parties’ respective interests but that is the subject of another blog.

In respect of disputes where the legal title to a property is held in joint names the starting point is that the beneficial ownership follows the legal ownership and unless there is anything to the contrary in writing the presumption is that the equity is intended to be shared equally.

The starting point is to look at what is set out in the transfer document.  If that document sets out the shares in which the parties own the property then that will be conclusive save for very limited circumstances such as fraud or mistake.  If the transfer is silent as to each party’s respective shares, the presumption is that the property is owned equally and it is for the party asserting that the property is held differently to prove their case. It isn’t sufficient to simply evidence that one legal owner has contributed more to the purchase price and/or renovation of the property than the other legal owner; the party asserting they are entitled to a greater than 50% interest also has to show that there was also an intention they would be entitled to more than 50% of the equity.

This can be a very complicated area of law and therefore it is extremely important to take timely and expert legal advice.  If you are unmarried  and want to find out where you stand speak to one of our local family law experts today on 0800 015 0340.  Our family law team cover all of our offices in Huddersfield, Halifax, Leeds, Wakefield, Morley, Pudsey and Horbury and offer a free initial half hour appointment.