Rights to property after separation

26 July 2021

When you separate from your partner, you'll need to decide who gets what, including your home. One person might feel they should stay in the family home with the kids, while the other may argue that they've contributed more money.

If you are married, then these are all factors that will be considered by the Court when making any financial arrangements during your divorce. If you are not married then, depending on how the home is owned, there's a chance that one person might not have any legal rights over the property.

This is because the laws for married couples are very different to the laws (or lack thereof) for unmarried couples.

In this article, we are going to focus on the rights to property after separation for unmarried couples. See more information on dividing finances in divorce.

Unmarried couples - who gets the house?

There's a popular myth that when you live with your partner for a long time you're in a 'common law marriage'. But the truth is that in England and Wales there's no such thing as a common law marriage. Whether you've been living together for 1 year, 10 years or even 50 years, if you're not married, you have no automatic legal right to your partner's assets.

Living together when you're not married is called cohabitation, and this is currently the fastest growing family type in the UK, as more and more of us are choosing to live together without getting married. Often someone will move into a property that their partner already owns, or it may be that one person can't afford to contribute to the purchase of a new house. But what many don't realise is that if the relationship breaks down, they could find themselves without anywhere to live.

For example, if someone owns a property in their sole name, and their partner moves in, it's likely the partner will start contributing towards mortgage payments and renovation costs. If things don't work out after a few years, the partner who doesn't own the property would be entitled to nothing, despite contributing towards the property for years.

Or take a different example where a couple buys a house together, but the mortgage and property title is only in one person's name. Even if both people contributed towards the costs, the person named on the mortgage would have a much greater claim to the house.

If you're in this position you could argue that you have an interest in the property, because although it belongs to your ex, you've contributed financially over the years, perhaps paying towards the bills and mortgage repayments. But this can be difficult to prove, and it can also be very costly to pursue this argument in Court.

Rights to property if you are married or have kids

It's important to note that things are slightly different if you're married or if you've have children together.

When you're married you're automatically entitled to a share of your partner's assets. This means you have a legal right over the property, even if you're not the legal owner. If you want to protect assets that you bring into the marriage, you should consider getting a prenuptial or postnuptial agreement.

If you have any children, the person considered to be the 'primary care-giver' normally gets to remain in the family home. This basically means the person who looks after the children for the majority of the week. For more information see divorce with kids, who gets the house?

Cohabitation agreements

So for many people the bottom-line is that if you're not married and your name isn't on any official paperwork, it's very likely your ex will keep the house. Getting married would give you more legal rights, but then, marriage isn't for everyone.

If you are in a cohabiting relationship, and you want to protect your financial assets for the future, you can put a cohabitation agreement in place. This is a legal document which details what should happen if the relationship does break down. You can set out who (if anyone) gets to keep the house, what do to with the contents of the property, and how any savings should be split if you separate.

If you're going through a divorce or separation and are in dispute as to what should happen to the family home, our family law solicitors can help you. Or if you'd like make a cohabitation agreement or prenuptial agreement, we can draft either of these documents on your behalf.

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