Many people are unaware of how differently the courts treat married and unmarried couples. The courts have a wide range of powers when it comes to financial matters for married couples.. However, unmarried couples do not have the same rights, even if they have lived together or they have children. There is no such thing as a “common law” spouse. However, protection does exist.
In some cases, separated couples can make a claim against property under the Trusts of Land and Appointed Trustees Act 1996 (TOLATA).
- What circumstances can you make a claim under this act?
For advice in relation to a potential property claim against a former partner, please contact a member of our property litigation team.
The title deeds will show who the legal owner of the property is and there is a presumption that they will own the underlying beneficial interest in the property. If the property is in joint names, there is a presumption that it is owned equally in the absence of a written declaration of trust.
If a joint owner seeks to argue that he or she owns more than a 50% share, they would need to show that the s/he and their co-owner had a different common intention than to own the property in equal shares when the property was purchased, or that they subsequently formed a common intention that their respective interests would change.
Property in the sole name of one party
If a couple live in a property which is held in the sole name of one party, it may be possible for the non-owner party to establish an interest in the property. There are various ways in which an interest can be established, the most common being direct financial contributions by the non-owner party.
If the non-owner can establish that direct contributions were made by them towards the property or mortgage, this may result in an interest proportionate to the amount contributed. Evidence of financial contributions is crucial, and it is therefore important to ensure that monetary contributions are transferred electronically, from one bank account to the other, or directly towards the mortgage, so that bank statements can be produced if necessary.
Financial claims for unmarried couples with children
Unmarried people who have dependent children have significant potential financial claims under Schedule 1 of the Children Act 1989. This could include:
- Financial claims for housing: usually housing is provided for the duration of the child’s minority only, after which the applicant parent and the child may have to vacate the property;
- Lump sum orders: to fund capital needs, such as for the purchase of furniture, contents, motor vehicles or removal costs. Repeat applications for lump sum payments can be made.
- School fees orders: the court can order one parent pay for school fees.
- Legal services orders - the court has power to order a parent to pay the legal fees of the applicant parent.
- Child maintenance – this would usually be a regular monthly amount to support the applicant parent with the financial needs of a child.
In most cases, child maintenance will be dealt with by parental agreement, or in default, after an assessment is carried out by the Child Maintenance Service.
In certain circumstances, the Child Maintenance Service will not be able to assist, or will only be able to assist partially:
- Where the non-resident parent lives abroad; or
- Where the non-resident parent is a high earner so that they exceed the maximum assessment with the Child Maintenance Service (known as “Top Up” cases).
In these cases, parents can apply for financial support for their children under Schedule 1 of the Children Act 1989. Children over 18 can also make a claim under Schedule 1 in their own right.
Find out more about further financial provisions for children.