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Disputes Between Unmarried Couples - Prevention, Procedure & Pitfalls

on Tuesday, 23 November 2021.

Cohabitation of unmarried couples increased by 137% between 1996 and 2020 but as we know, the law has not kept up. We share our top tips when advising unmarried couples - both at the outset of their relationship and on separation.

Myth of the Common Law Marriage

Many clients are influenced by the myth that if they live together as man and wife there is a 'common law marriage' and can be surprised to find that relying on complicated trust law is often their only option.

Unmarried couples have no 'family pot' to be divided upon separation. The main asset that may be disputed is likely to be the family home and the couple's beneficial interests in it. On separation, unmarried couples may disagree over how their home is owned and in what shares, resulting in a claim over the property under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). Other claims we commonly see in respect of the family home are common intention constructive trust and proprietary estoppel claims.

What Are the Procedures and Pitfalls Connected With Cohabitee Disputes?

If advising a client in any of these situations, careful consideration should be given to the numerous procedural difficulties and pitfalls with these claims, such as:

  • Evidence and documents should be collated as soon as possible - The work involved in bringing or defending a claim is frontloaded. Contemporaneous evidence is key to demonstrating the intentions of the parties and should be obtained as early as possible, to provide an indication of the merits of the claim. Conducting a detailed review of historic email chains, messages and bank statements is essential to building a strong case.
  • Mediation and settlement - By seeking specialist advice early on, where appropriate, clients can attempt to seek an early settlement outside of court proceedings, whether through civil mediation or negotiations between solicitors.
  • Civil procedure - If proceedings have been issued, ensure that practitioners dealing with the dispute are experienced in the Civil Procedure Rules (CPR). Many cohabitation disputes are dealt with by family departments who are well-practiced in operating under the Family Procedure Rules, but who rarely deal with the onerous rules and deadlines set out in the CPR. There can be significant costs consequences if the rules are not followed and ultimately, claims can be struck out. Delays and an increase in costs for clients are common where avoidable procedural errors have occurred.
  • Costs - Disputes between unmarried couples can be very costly, particularly in comparison to the costs married couples incur in dealing with financial remedy disputes. Clients must also be made aware of the risks around costs orders, as the unsuccessful party is likely to be ordered to pay their ex-partner's costs.

How Can a Dispute Be Prevented?

At the outset of a cohabiting relationship, unmarried couples should be carefully advised of the mechanisms they could consider putting in place to protect their interests:

  • Obtaining specialist advice at the time of purchase - Ensure that the ownership of the property is accurately recorded on the TR1. This document is the starting point of all family home disputes. We frequently find that many clients have not been adequately informed of the difference between joint tenants and tenants in common.
  • Declarations of Trust - Accurately recording the shares in which the co-owners own the property and also the contributions that have been made at the time of purchase.
  • Cohabitation agreements - Setting out how property, capital and assets are owned, how finances will be dealt with throughout the relationship and how they should be divided upon separation. Keeping these agreements under regular review and reflecting any changes in the relationship, such as having children, is essential.
  • Ensuring Wills are up-to-date - Cohabiting partners are not automatically entitled to their partner's estate on their death. To minimise the risk of disputes involving the estate of the deceased partner, unmarried couples should make sure their Will accurately reflects their wishes. Remember that the surviving partner may have a claim against their late partner's estate under the Inheritance (Provision for Family and Dependants) Act 1975. Read our top tips for dealing with such claims.

Catch up with our free webinar for more on the Trials and Tribulations of ToLATA cases

If you have any questions on this complex area, please contact a member of our Private Client team, or complete the form below.

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