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Financials

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Unmarried Finances

The law relating to married and unmarried families is very different when considering financial matters.  It is often said that someone is a ‘common law spouse’ but this is about as realistic as a unicorn.  An unmarried couple do not generally have any financial claims against each other where their relationship breaks down and this can often result in very unfair situations arising.

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Further Information

Outlined below are some explanations of what could and can happen in any given situation in divorce and seperation.

The Law

The law relating to an unmarried couple when considering their financial situation is governed by the Trusts of Land and Appointment of Trustees Act 1996 (often known as “TOLATA”).  This is a complex piece of law and enables a court to order a sale of a property although there is no authority for it to require a property to be transferred to one person.

Joint Owners

Where an unmarried couple purchase a home in joint names then they will usually own it in 50/50 shares.  There have been many cases in relation to this complex area and the usual starting point is that a property purchased in joint names (and without the title deed which they both sign on the purchase saying otherwise) is owned jointly 50:50 shares.  This will generally apply in the absence of duress, fraud or mistake.

There are, however, cases where the couple did not record their agreement over their shares in writing, and it is then necessary to look at their conduct.  This gives the court some discretion and hence each case is different and will turn on its own facts. Financial contributions are relevant, but there are many other factors which may enable a court to decide what shares were either intended or fair.

Sole Owner

Where the family home was purchased in the name of one person, the Court needs to decide whether it was intended that the other person would have any share of it. If so, the Court must decide the amount of that share and the common intention has once again to be deduced from their conduct.  The main two legal concepts in this regard are known as Resulting and Constructive Trusts and both can be highly complex areas requiring specialist advice.  These are relevant where a court must decide whether someone has a share in a property when the legal ownership is in the sole name of the other person.

(a)   Resulting Trust

A ‘resulting trust’ arises when the non-owner has made a direct financial contribution to the purchase of the property registered solely in “A”’s name. It is important to have evidence of this payment and to show that this contribution to the purchase was not intended to be a gift or a loan. A resulting trust means that the legal owner holds either all or part of the property on trust for or for the benefit of the other person. If a resulting trust is determined to exist, the court will then need evidence to calculate the precise share in the property based on the amount of the direct capital contribution, proportionate to the purchase price. However, they may also then look at wider factors, and hence this area needs a solicitor with experience in this area of law.

(b)   Constructive Trust

A ‘constructive trust’ is a more complex area of law and happens when there is an agreement, arrangement, understanding between the two parties. This can happen either when there is an express agreement and when there is not. The Court will look at all the evidence in determining the share of each party.

An express agreement may occur when set out in a formal document and signed by the legal owner and obviously gives much better evidence to show the intentions of each party. However, it is usually the case that the intentions are only spoken in conversations and this means that evidence needs to be given and it is one party’s word against the other. When this occurs, it is also necessary for the person claiming a share in the property to have acted to their detriment or to have altered their position by relying on the agreement, arrangement, understanding or promise.

Where there is no such express agreement, the Court may look at the conduct of the parties in relation to the property, which is called ‘imputing a common intention’. If the person claiming a share contributed directly to the payment of mortgage instalments, or to payments for a substantial improvement to the property, the Court may infer that this must have been as a result of a common intention to share the property. Indeed, it would be very unusual to pay another person’s mortgage for no financial gain. The contributions must be of a substantial nature and, once again, this can be a complex area needing the expertise of an experienced solicitor. 

We are here to help you resolve the division of financial assets and wealth.

Frequently Asked Questions

This depends largely on the common intention of you and your partner.  In some cases there will be an agreement (either spoken or in writing) for you to have a share and in other cases we must consider your conduct to establish whether it was intended you have a share.

You would need to show that you had acted to your detriment by relying on the intention for you to have a share.  You may have spent money or carried out work and each case is different.  The amount of your entitlement will depend on many factors so expert advice is essential.

Noy necessarily as you may be entitled to occupy the home and the court can grant something known as an Occupation Order in some cases.