Can I Seek A Share Of My Ex-Partner’s Property?

Unmarried couples often purchase property jointly, and when they do, the property can be owned by them in distinct shares (as tenants in common) or jointly and severally with the intention that when one co-owner dies, the other will inherit their share (joint tenants). On every occasion that a property is being purchased jointly, legal advice should be sought in relation to this.

However, sometimes a couple will begin to cohabit when one or both of them already has their own home, and when the couple begins to live together, the property they live in may remain in the name of one of them only. Although legally the title deeds will specify who is entitled to live in the property, and who a potential buyer is purchasing it from, that is not necessarily the ‘full story’ where ownership is concerned.

Rights to property after separation for couples who are not married

Beneficial ownership

Beneficial ownership has been recognised in English common law for a very long time, and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) enables the Court to make a formal declaration that an unmarried cohabitee has a financial interest in a property registered in the name of their partner. The Court can also make an order for the property to be sold to release that interest.

Usually, this only becomes an issue when the parties separate, and the difficulty that many unmarried cohabitees face is that when they are moving in with somebody they are romantically involved with, they do not plan for separation which can leave them in a difficult position when they do separate.

What the Courts consider

The starting point for a Court will always be the title deeds, and if these provide that one person alone is the registered proprietor, with no reference to any other individual having a charge on the land, then it is for the person seeking interest to prove that the interest exists, quantify that interests, and demonstrate why they should be entitled to it.

If you are alleging that your interest can obtain an order under TOLATA declaring as such, you must demonstrate one or more of the following:

Evidence is essential to the success of any claim. It is not enough for one party to say that they assumed that the property would be partly theirs, and the Court will expect clear evidence of what was said, when it was said and where, and how that person acted as a result. For example, clear representations such as “this is your home as well as mine” or “I want you to share this house with me” indicate the intention of both cohabitees, whereas calling the property “our home” is too vague.

A mere agreement is not enough. You must show that as a direct result of things said by your ex-partner, you acted to their detriment in some way (e.g. paying the mortgage jointly, or contributing sums to fund an extension).

Paying towards a repayment mortgage, providing deposit money, or funding improvement work can in itself lead to a beneficial interest arising regardless of any verbal agreement (known as a resulting trust). Paying regular outgoings, such as council tax and electricity bills, is not enough however as these payments would be expected from any tenant, whereas mortgage repayments would be expected of a co-owner. Many ask whether decorating a house or apartment or installing a new kitchen is sufficient for them to show they have materially improved the property’s value. Usually, only a qualified surveyor can give a definitive answer to such a question but in general, cosmetic improvements do not count for much, if anything at all.