When couples separate, the legal differences can be significant depending on whether they are married or unmarried.
Married Couples
Married couples benefit from specific legal protections and entitlements under the Matrimonial Causes Act 1973. This legislation allows individuals to bring financial claims against one another for assets acquired during the marriage, including property, pensions, investments, and bank accounts—regardless of whether these assets are jointly owned or held solely in one spouse’s name. For more information about the legal framework governing separation for married couples, please read our article linked here.
Unmarried Couples
Unmarried couples do not have the same legal protections, and they may face financial uncertainty or more complex disputes upon separation.
For unmarried couples, whether they jointly own property or one partner is the sole owner, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) governs how property will be dealt with following separation.
Jointly Owned Property Ownership for Unmarried Couples
The ownership structure of the property plays a pivotal role in how a jointly owned property is divided:
- Joint Tenants: If the property is owned as joint tenants, the presumption is that both individuals hold equal ownership of the property. This presumption can be challenged if there is evidence, such as a Declaration of Trust or a Cohabitation Agreement stating a different intention. A key feature of this arrangement is the right of survivorship, meaning that upon the death of one co-owner, the surviving co-owner automatically inherits the deceased’s share of the property. It is important to note that a share of ownership cannot be transferred to another person if the property is held as joint tenants.
- Tenants in Common: If the property is owned as tenants in common, each party holds a specific share of the property, which may or may not be equal. The right of survivorship does not apply here, and each co-owner has the freedom to bequeath their share of the property to any individual of their choosing, as detailed in their will.
Rights of Non-Owner Cohabiting Partners
When the property is solely owned by one partner, the non-owning cohabiting partner generally has no automatic entitlement to a share of the property. However, there are exceptions. A non-owning partner may be able to claim an interest in the property under certain circumstances, such as:
- Financial Contributions: If the non-owning partner has made direct financial contributions to the property—such as towards the initial deposit, mortgage payments, significant home improvements, or ongoing property maintenance or other financial contributions that have increased the value of the property —there may be grounds for claiming a share of the property. However, routine maintenance due to normal wear and tear will generally not count as a financial contribution.
- Shared Intentions: In some cases, a non-owning partner can argue that there was a mutual understanding or agreement that they would have a financial interest in the property.
At Johnson Astills, we understand that navigating the financial challenges following a separation can be overwhelming. Our Family Team can support you with the legal aspects of your separation, offering expert advice tailored to whether or not you are married to your partner.
Contact us via telephone on 0116 255 4855 or our office and ask to speak to a member of the Family Team, to see how we can assist you. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in the enquiry form on our website.
