Who owns what when there is no marriage certificate?
Joanna Toch, family law expert at myBarrister.co.uk, the direct access barrister service writes exclusively for Female First about the rights of cohabiting couples who are unmarried. .
Cohabiting couples: you don’t have to put a ring on it, just be sure to sign on the dotted line
It seems that fewer Brits are putting a ring on it. Official figures from the ONS show that since 2003, the number of unmarried heterosexual couples in the UK has increased by 700,000. The figure now stands at 2.9 million, making this the fastest growing family type – and 1.2 million of these families have dependent children.
Yes, you could argue that marriage is simply a piece of paper. But with this confirmation comes age-old legal rights, and financial protection should your relationship break down. As a non-married cohabiting couple, the rights you have when it comes to the ownership of the home you live in are very murky.
Who legally owns what?
The first thing to consider is whether the property is registered in your joint names at the Land Registry or in one name only. There will be a presumption that this legal ownership is correct and that person can stay in the property if you split and get the equity if it is sold.
But that isn’t the end of the story. There are two forms of ownership: legal and equitable. Legal ownership means your name is registered as an owner. Equitable ownership gives you the same benefits but your name is not recorded on the legal title. The most straightforward way to establish this is by a trust deed – the time to have this prepared is at the time of purchase of the property and have it registered on the TR1 (property transfer) form.
It is also possible to establish an equitable interest by arguing there was an agreement to share the property benefits that did not get recorded in writing. This is when things start to get messy, and very often personal. The courts will then examine whether there has been a ‘common intention trust’, either by parties making an agreement verbally, or more controversially, by looking at how each person has lived their lives.
Occupation, Child, or Trust Order – the courts will still decide
You may be able to get an ‘occupation order’ from the court if you can settle that the ‘balance of harm’ is in your favour to stay in the property short term using the Family Law Act 1996. If you have children and you are the main carer, you can apply to live there until the children are grown up using the Children Act 1989.
Whether you apply for an occupation order, children order or trust order, the courts have a wide discretion. This area of law is ripe for reform because cohabitants struggle to understand their legal rights. The Law Commission has in fact recommended that the law be reformed. This was pushed by family lawyers, with a bill introduced last October, but hasn’t received government backing.
Until the laws surrounding cohabitation rights change, or, at the very least, become clearer, the best thing to you can do to protect yourself is to regulate your position by making a written trust, or a cohabitation agreement.
These written agreements aren’t popular because they are completely unromantic. It seems that those who choose not to sign the marriage register are those who seem equally cautious about signing anything else. In many cases I have witnessed huge misery, which could have been easily avoided with a bit of planning at the start.
The sad reality is that buying property jointly without a marriage certificate or a written agreement is making lawyers rich and keeping judges busy.