Living together without marrying is now a common and accepted choice for many couples. While day-to-day life may feel no different from that of a married couple, the legal position can be very different if the relationship comes to an end – particularly where property is involved.
Disputes about the family home are one of the most frequent and emotionally charged issues faced by unmarried couples following separation. Understanding how property rights are determined, and what the law can (and cannot) do, is essential for protecting your position and avoiding unnecessary conflict.
There Is No Such Thing as “Common Law Marriage”
One of the most persistent misconceptions in English law is the idea of “common law marriage”. Despite widespread belief, living together for many years – even with children – does not give unmarried couples the same legal rights as married couples or civil partners.
Property rights for unmarried couples are not based on fairness or need. Instead, they depend largely on ownership, intention and evidence. This often comes as a surprise to separating couples who assumed the law would recognise their shared life in the same way it does on divorce.
For a broader overview of the legal position affecting unmarried couples, you may find it helpful to read our earlier article, Unmarried Couples: Navigating the Complex Legal System.
How Are Property Rights Decided for Unmarried Couples?
When unmarried couples separate, disputes about property are usually governed by property and trust law rather than family law. The starting point is always who legally owns the property, but that is not always the end of the story.
If Both Partners Are Named on the Property Title
Where both parties are registered owners, the property is usually held either as:
- Joint tenants, or
- Tenants in common
This distinction matters. Joint tenants are generally presumed to own the property equally, whereas tenants in common may hold defined shares (for example, 70/30). If the title does not specify shares, the court may need to determine what the parties intended at the time of purchase.
Disputes can arise where:
- Contributions to the deposit or mortgage were unequal
- One party funded renovations or improvements
- There was an informal understanding about ownership that was never documented
If the Property Is in One Person’s Name Only
This is where matters often become more complex.
If only one partner is the legal owner, the other does not automatically acquire a right to the property simply by living there or contributing to household expenses. However, in some circumstances, they may be able to establish a beneficial interest.
The court will look closely at:
- Financial contributions to the purchase price or mortgage
- Contributions to major improvements
- Evidence of discussions or agreements about ownership
- Whether there was a shared intention that both parties would have an interest in the property
Each case turns heavily on its own facts.
What Is a TOLATA Claim?
Many disputes between unmarried couples are resolved under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
A TOLATA claim allows the court to:
- Decide who owns what share of a property
- Determine whether a property should be sold
- Resolve disputes about occupation or proceeds of sale
Importantly, the court’s role is not to decide what is fair in a general sense, but to establish the parties’ legal and beneficial interests based on evidence.
TOLATA claims can be time-consuming, costly and emotionally draining, which is why early legal advice is so important.
Constructive Trusts and Proprietary Estoppel — In Brief
In some cases, an unmarried partner may rely on legal principles such as constructive trust or proprietary estoppel to establish an interest in property.
In simple terms:
- A constructive trust may arise where both parties shared an intention that the property would be owned jointly, and one party acted to their detriment in reliance on that intention.
- Proprietary estoppel may apply where one party was led to believe they would have an interest in the property, relied on that belief, and would suffer an injustice if the promise were not honoured.
These arguments are highly fact-specific and often require detailed evidence, making them particularly challenging without legal guidance.
Why Property Disputes for Unmarried Couples Can Be Harder Than Divorce
Many separating couples are surprised to learn that property disputes can be more difficult to resolve when they are unmarried.
Unlike divorce:
- There is no overarching legal framework for fairness
- The court cannot redistribute assets based on need
- Outcomes depend heavily on documentation and proof
This can place one party at a significant disadvantage, particularly where financial arrangements were informal or based on trust rather than written agreement.
Can Property Disputes Be Resolved Without Going to Court?
While court proceedings are sometimes unavoidable, many property disputes between unmarried couples can be resolved through:
- Early legal advice
- Negotiation between solicitors
- Alternative dispute resolution (ADR), such as mediation
Reaching an agreement outside court can:
- Reduce costs
- Minimise stress
- Preserve a working relationship, especially where children are involved
Seeking advice at an early stage often increases the chances of achieving a pragmatic and proportionate outcome.
When Should You Take Legal Advice?
It is sensible to seek legal advice if:
- You are considering separating and own property together
- You have contributed financially to a property you do not legally own
- Your former partner disputes your interest in the home
- You are unsure whether the property should be sold
Early advice can help clarify your position, protect your interests and prevent matters from escalating unnecessarily.
Final Thoughts
For unmarried couples, property rights are not based on assumptions or the length of a relationship.
Free initial half hour meetings are available to potential new clients in person, virtually or by telephone.
You can get started online at https://www.midwinters.co.uk/family/ or call 01242 514674 to speak to Lucy or Linda.
