Financial Provision for Unmarried Couples

There is no such thing as a “common law” spouse. However, protection for unmarried partners does exist.

In some cases, separated couples can make a claim against property under the  Trusts of Land and Appointed Trustees Act 1996 (TOLATA).

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

Joint 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.

Property in the sole name of one party

If a couple lives in a property that 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.
• 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 to pay for school fees.
• Legal services orders - the court has the power to order a parent to pay the legal fees of the applicant parent.
• Child Maintenance - this would usually be dealt with via the Child Maintenance Service save in limited circumstances

Child Maintenance

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. 

The court retains jurisdiction to make child maintenance orders in the following limited circumstances:-

• Where the payer lives or works overseas
• For expenses in relation to a disability
• School fees
• For expenses in relation to continuing education at university in some circumstances
• When the payer earns in excess of £156,000 gross per annum, the payee can apply for a “top-up” child maintenance order once a maximum child maintenance assessment has been put in place by the Child Maintenance Service.