Rights To Property After Separation When You’re Not Married

Do you own a property jointly with someone? Perhaps you’ve lived with them as a couple for some time?

Has the relationship broken down?

Do you need to know what rights you have to the property after separation?

For those who are not married this is a common question.

The short answer, you might not be surprised to hear, is that it depends. Sorry about that.

It depends upon several factors.

 

Who Owns The Property “Legally”

The first thing that you’ll need to do is establish who actually owns the property, legally. By that I mean who is actually registered as the legal owner of the property at the Land Registry.

The property might be owned by one of you legally, or by both.

Whether you want to claim part of the property, get your ex to buy you out, or to sell it and move on, establishing legal ownership is the first port of call.

 

Where The Property Is Owned By One Party

If the property is legally owned by just one of you, the starting point is that that person will most likely be entitled to the whole lot.

This scenario is common where one party owned a house or a flat already, and the other party later moved in.

Mistake

There are exceptions to this general rule.

It might be the case that you purchased the property together and that one party was left off of the registration form by accident. If that’s the case then the position can be rectified.

Claiming A Beneficial Interest

Alternatively one party might be able to establish what is known as a “beneficial interest” in the property, which would entitle them to part of it.

To do that you would need to show that there was either an agreement between you to share the property, or a “common intention” between you to share ownership of it.

Agreements

A written agreement between you to share the beneficial ownership of the property would obviously show this. A document, letter, or even emails might help to show such an agreement. But it might be the case that the agreement was not recorded in writing, and instead was made orally, so details of discussions between you at the time of purchase will be very important in proving that there was an agreement.

Detriment

The partner trying to claim the interest would also have to show that they acted to their detriment in reliance upon the agreement. This can be shown in many ways, but the most common way is to show some sort of financial contribution to the property.   A change of position such as giving up the security of alternative accommodation in reliance on the agreement might also be sufficient.

Conduct

On the other hand a beneficial interest in the property might be inferred by your conduct. In particular a contribution to the purchase price or payment of mortgage instalments will be good evidence to establish this. Payments to the other partner to allow them to pay the mortgage instalments might also be sufficient. As might paying for any large upgrades to the property, such as adding an extension.

How Much Are You Entitled To?

If an agreement or a common intention to share the property, plus detrimental reliance can be established then the next question is what percentage of the equity in the property are you each entitled to? Should it be a 50:50 spilt, or should it be divided in a different way?

If you can agree between you what would be fair in all the circumstances that can be documented and given effect to relatively easily, but if the proportions cannot be agreed, or the legal owner refuses to recognise an agreement or common intention to share ownership then an application to court to determine these issues might be necessary.

That said, a strongly worded letter will often do the trick.

Where The Property Is Owned By Both Parties

It can be a bit easier to deal with your rights to the property after separation where the parties are not married if they own it together (i.e. if they are both registered as the legal owner at the Land Registry).

Tenants In Common

Often the parties will have expressly set out the proportions of the property that they each own beneficially by a declaration of trust.

This is often entered into when purchasing the property and can involve little more than ticking a box on a transfer form.

It might state that the parties hold the property jointly in equal shares (50:50), or perhaps in some other proportion, where one of them paid more towards the purchase price for example.

Where there is a declaration of trust the parties will own the beneficial interest in the property as tenants in common.

In this scenario the ownership of the property (and therefore the amount of the equity each party is entitled to) is determined by what is set out in the declaration of trust.

Unequal contributions to the purchase of the property will count for nothing if the declaration of trust states that the parties hold the property as tenants in common in equal shares.

Joint Tenants

If you don’t own the benefit of the property as tenants in common (i.e. if no declaration of trust has been entered into), then you will own it as joint tenants.

If that is the case you are each regarded as owning the whole of the beneficial interest of the property.

The starting point here is that, in the absence of extenuating circumstances, where the joint owners have not used a declaration of trust, they will be taken as owning the property in equal shares.

What If One Party Dies

Where the beneficial interest in a property is held as tenants in common the parties’ interests in the property will pass to those set out in their will (or under the laws of intestacy) if they die.

The same is not true if you own the property as joint tenants. Here, if you were to die, the whole of your interest in the property would pass automatically to the other joint owner (your ex).

A joint tenancy can be severed to turn it into a tenancy in common to avoid this from happening to protect one’s interest in the right circumstances and/or if it is your preference.

What Should You Do?

As you’ve found your way to this article I will assume that you have split up with your ex-partner, that you were not married, and are wondering what you should do next.

Presumably you either want to claim part of the property, buy out your ex, have your ex buy you out, or sell the property to release your equity. Perhaps you need to remove yourself from a joint mortgage.

Send A Letter

Every case is different, but in most scenarios it is best to set out what it is that you want from the situation via a formal letter.

Hopefully you can resolve things amicably between yourselves, but often following separation that isn’t possible and so a letter is the next best thing as it can set out clearly what you want, what you want your ex to do, and what might happen if they don’t co-operate.

We use a letter called a “Letter Before Action” which makes it very clear to the other party exactly what is required of them.

Sending a letter such as this is also a requirement before you can apply to court. That is the case whether you want to ask the court to clarify the proportions in which you own the property, or to order that the property should be sold and the sale proceeds divided between you. Or both.

Apply To Court

If a letter or two doesn’t work – perhaps your former partner refuses to reply, simply burying his or her head in the sand – then the next step will be to apply to court.

If you are claiming an interest where your former partner is the sole legal owner you would apply to court for a declaration that you have a beneficial interest in the property. You might also ask the court for an order that the property be sold so that you can realise that interest from the sale proceeds.

Alternatively, if you own the property jointly and your ex won’t agree to sell or buy you out, you might simply apply for an order for sale so that you can get your money out and move on with your life.

These claims often settle after an application to court has been made (i.e. before there is any need for a hearing). It is just a shame that it takes such action to get your former partner to engage with the process.

In many cases that won’t be necessary at all, as a strongly worded letter will be enough to bring them to the table.

Rights To Property After Separation When Not Married – Next Steps

I hope that has helped to clarify what your rights to the property might be after separation when you’re not married, and the steps that you’ll need to take to get the best out of the situation for yourself.

If you own a property jointly with someone or have lived with someone as a couple, if the relationship has broken down, if you were not married,  if you want to sell or claim an interest in the property, and if the other person is refusing to co-cooperate, feel free to get in touch. I’d be happy to discuss this with you.

Get In Touch

You can call me now on 020 7842 1452

Email me at ian@propertydisputes.co.uk

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I’ll then get in touch as soon as I can for a chat about your legal rights and options.

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