Unmarried and separating? What to do about your property

If you live with your partner, breaking-up will raise issues of what will happen to the property you share.

Unfortunately, relationships do not always work out. A break-up is usually a stressful time even if you do not live with your partner. If you do, then you will face the added difficulty of trying to agree what will happen to where you live.

Renting together?

If you live in rented accommodation, check your tenancy agreement to see whether you are named as a tenant. If you are not named on the tenancy, then you may be at risk of having to leave the property if your ex-partner asks you to. If you are named on a tenancy, you will likely be a joint tenant.  In this case, if you and your ex agree, you can surrender the tenancy if the landlord is also in agreement. However, if the landlord does not accept this, you will need to give notice as specified in the tenancy agreement. Remember that if one of you serves a valid notice to quit on the landlord, this will end the tenancy for both of you (unless the tenancy states otherwise). For more advice on the practicalities of ending a tenancy, please contact our Dispute Resolution team.

Shared ownership

If you live at a property that one, or both of you, has purchased, then there is likely to be more at stake financially. There are a couple of ways of minimising the risk of a protracted dispute arising if and when the relationship breaks down:

  • Declarations of Trust

Even if you did not pay the deposit for the property and the property is in your former partner’s name, you may still have a beneficial interest in the property. If it is not expressly created, this will arise in the form of an implied trust. Implied trusts of land will usually be either a resulting trust or a constructive trust.

Resulting trusts comes into being at the date of purchasing a property, for example if you contributed to the deposit.

A constructive trust can arise during the time that you live at the property, for example if you contribute to mortgage payments or substantially improve the property. This is a complicated area of the law and relying on an implied trust can be risky.

Without any formal express agreement recording what the parties agree, arguments can arise about how equity is held and, if those cannot be resolved, the process of having a court decide the matter under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) can be a long and expensive process.

The best way to protect against a TOLATA dispute is to have a formal Declaration of Trust which can expressly record how both parties interests are held and what happens in the case of a break up, for example.

For more advice on this front please contact our Dispute Resolution team.

  • Cohabitation agreements

Unlike married couples, unmarried cohabitees do not automatically have rights in law and can be left with little recourse in the event of a break up or death of one of the parties. Indeed, this is an area that lawmakers have been looking at, with a draft bill being proposed in the House of Lords last year. That is still far from being enacted into law, however.

Until there is any statutory protection, if you intend to cohabit with your partner, it may be sensible to enter into a cohabitation agreement. That is an agreement that can cover a broad range of matters such as:

  • Allocating who pays household outgoings such as mortgage payments, rent, bills, council tax or even more day-to-day costs like food shopping;
  • What happens to any joint property or assets in the event the relationship ends;
  • Arrangements for children or even pets.

We regularly advise on declarations of trust and cohabitation agreements and can help you find the best solution for your circumstances; please get in touch for further information.

Whether you are entering a cohabitation agreement or a declaration of trust, it may also be sensible to consider updating your will to reflect your new circumstances – our Private Client team will be happy to assist.

This article was written by Daniel Bolster

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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