Financial Provision for Unmarried Couples

There is no such thing as a common law spouse. Unmarried couples do not have the same rights as married couples. However, protection does exist.

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Claims Against Property: Trusts of Land and Appointed Trustees Act 1996 (TOLATA)

Joint property

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, he will need to show that the he and his 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 account to the other, or directly towards the mortgage, so that bank statements can be produced if necessary.

What orders can be made under TOLATA?

A court can order

• A sale of the property;
• A declaration of the parties’ beneficial interest;
• Make orders by way of account/compensatory orders.

For advice in relation to a potential property claim against a former partner, please contact a member of our property litigation team.

Schedule 1 of the Children Act 1989

Unmarried people who have dependent children have significant potential financial claims such as:-

• Claims for Housing (usually housing is provided for the duration of the child’s minority only, after which the claimant and the child may have to vacate the property);
• Lump sum orders- to fund capital needs (for the purchase of furniture, motor vehicles, removal costs or equipment. Repeat applications for lump sum payments can be made);
• School fees orders;
• Legal services orders- the court has power to order a parent to pay the legal fees of the applicant parent;
• Child maintenance.

Child Maintenance

In most cases, child maintenance will be dealt with by parental agreement, or in default, after a Child Maintenance Assessment is carried out by the Child Maintenance Service.

If the non-resident parent earns more than £3,000 per week gross, the Child Maintenance Service can make a maximum child maintenance assessment, which will enable a claimant parent to apply to the court for a “top up child” maintenance order to meet the child’s needs.

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;
• 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, as described above.

Children over 18 can also make a claim under Schedule 1 in their own right.

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