When an unmarried couple separates, the family home often becomes the centre of an unexpectedly complicated dispute. One parent may see the property as the children’s home, close to their school, friends and wider family, while the other may view it as their largest financial asset.
Unmarried couples do not acquire the same financial claims as spouses simply because they have lived together for many years or have children. There is no general doctrine of common-law marriage; therefore disputes about the family home is normally governed by property and trust law, although separate provision may sometimes be sought for a child under Schedule 1 of the Children Act 1989.
Can one joint owner insist upon a sale?
Where the home is jointly owned, either owner can ask the court to determine what should happen if an agreement cannot be reached. A joint owner cannot necessarily arrange a sale immediately without the other owner’s cooperation, but they can apply for an order under Section 14 of the Trusts of Land and Appointments of Trustees Act (TOLATA).
The fact that an application can be made does not mean that an immediate sale is automatic. Imagine that Amy and Lewis own their home jointly. After their separation, Lewis moves into rented accommodation and wants the property sold so that he can use his share of the equity as a deposit. Amy remains there with their children, aged seven and ten, and argues that a sale would require them to move schools.
Under Section 15 of TOLATA, statutory factors the court considers include the intentions of the person or people who created the trust, the purposes for which the property is held, the welfare of any child who occupies or might reasonably be expected to occupy it as their home, and the interests of any secured creditor.
The original purpose of purchasing the property as a family home may therefore matter. However, the court might find that this purpose changed or ended when the relationship broke down. The children’s position remains relevant, but their welfare is not automatically the overriding consideration in a TOLATA claim in the same way that it would be in proceedings directly concerning their upbringing. A mortgage lender’s right to recover substantial arrears may also carry considerable weight.
Do the title deeds and mortgage decide the answer?
The title held at HM Land Registry is critically important because it identifies the legal owner or owners. The mortgage performs a different function, and records who has promised the lender that the loan will be repaid. Being named on the mortgage does not, by itself, necessarily establish a beneficial share in the property, while being absent from the mortgage does not automatically remove an ownership interest shown by the title or a declaration of trust.
Where the home is registered in joint names, the usual starting point is that the parties also own the beneficial interest equally. This assumption can be overturned if there is strong evidence that the couple agreed to own different percentages, or later agreed to change their shares. However, proving this can be difficult, particularly if there is no clear written agreement.
A declaration of trust made when the property was purchased may settle the issue. For example, it might record that one partner owns 70 per cent because they contributed a much larger deposit. Unless there are grounds to challenge it, a clear written declaration will generally carry substantial weight.
Where the home is registered in one partner’s sole name, the other does not gain ownership merely because they lived there, cared for the children or paid ordinary household bills. They may, however, be able to establish a beneficial interest through a common intention constructive trust or, in certain circumstances, proprietary estoppel. Evidence might include contributions to the deposit or mortgage, substantial expenditure on improvements, written discussions about shared ownership, or assurances upon which the non-owner reasonably relied to their detriment.
These claims are intensely fact-sensitive. A partner who paid for groceries and utilities while the legal owner met the mortgage may face a more difficult argument than someone who transferred half the deposit and made regular mortgage payments following a clear agreement that the home belonged to them both.
An unmarried non-owner also does not receive the statutory home rights that may protect a spouse or civil partner. If their interest has not been formally recorded, urgent advice may be necessary about protecting any claimed beneficial interest at the Land Registry before the legal owner attempts to sell or remortgage.
Does living with children prevent a sale?
Children do not create an absolute bar against sale; nevertheless, their ages, schooling, health, additional needs, established routines and realistic housing alternatives can all become relevant. A court may be more receptive to delaying a sale where a child has important examinations approaching, requires specially adapted accommodation, or would suffer particularly serious disruption. The position may be different where suitable local rented housing is available or both parents would receive enough equity to rehouse themselves.
The court will also look beyond the resident parent’s wish to remain. It may consider whether the mortgage is affordable, whether arrears are accumulating, whether the property is larger or more expensive than the family reasonably needs, and whether delaying sale would unfairly prevent the other owner from obtaining a home in which the children could also stay.
Can the court preserve the home for the children?
In some cases, an application may be made under Schedule 1 of the Children Act 1989. Here, the court has powers that include ordering a parent to transfer or settle property for a child’s benefit.
A Schedule 1 claim differs from deciding who already owns the equity under TOLATA, because its purpose is to meet the child’s needs rather than redistribute property between former partners. Where one parent has substantially greater resources, the court might arrange for a property to be made available to the child and resident parent for a defined period. It is important to understand that this does not mean ownership is given to the resident parent permanently; in most cases the property or capital reverts to the providing parent when the child reaches adulthood, completes education or another specified event occurs.
Schedule 1 is not a universal solution; if there is little equity, limited income and no realistic ability to fund two households, the court cannot create resources that do not exist. Its usefulness therefore depends heavily upon the family’s financial circumstances.