Living Together vs Marriage: Your Property Rights and Separating With a Joint Mortgage

More couples than ever choose to live together without marrying, and many of them assume that after a few years, or once they have children, they have the same rights as a married couple. In England and Wales that is not the case. There is no such thing as a “common law marriage”, however long you have been together. Our article on whether common law marriage exists in the UK explains the myth in more detail.

The good news is that once you understand the differences, most of the gaps can be closed with some simple planning. In short:

• Married couples and civil partners who separate can ask the family court to divide their property, savings and pensions fairly, taking into account each person’s needs, including the needs of any children.
• Cohabiting couples who separate have no such general claim against each other. The question is usually who legally owns what, under ordinary property and trust law.

For most couples the home is the biggest asset, and this is where the difference between living together and marriage matters most.

If you are married, the court can transfer the home to one of you, order a sale, or divide the proceeds in whatever way is fair, whatever names are on the deeds. If you are not married, the starting point is the legal title and any written agreement:

• Home in joint names: you are usually presumed to own it equally unless a declaration of trust says otherwise, or the evidence shows you clearly intended different shares.
• Home in one partner’s name: the other partner has no automatic share. They may still be able to claim an interest, for example where there was a shared understanding that they would own part of it and they relied on that, such as by paying towards the deposit or mortgage. These claims depend heavily on the evidence.
• Joint tenants or tenants in common: joint tenants own the whole property together and the survivor inherits automatically. Tenants in common each own a defined share that passes under their will.

Disputes about the home between unmarried partners are usually resolved under the Trusts of Land and Appointment of Trustees Act 1996 (often called TOLATA). Our litigation team handles these claims if agreement cannot be reached.

When a marriage ends, one spouse may have to pay the other maintenance, and pensions can be shared or offset as part of the settlement. For cohabiting couples there is no equivalent:

• there is no right to maintenance for yourself from a former partner, however long you lived together;
• there is no power for the court to share pensions between you;
• savings and investments generally belong to whoever owns them, and joint accounts are usually treated as owned jointly.

This can be hard on a partner who gave up work or reduced their hours to care for children or the home. It is one of the main reasons we encourage couples to think ahead, especially when one of them is stepping back from paid work.

Children are protected whether or not their parents are married. Both parents must support their children financially, and child maintenance can be arranged between you or through the Child Maintenance Service. Arrangements for where the children live and how much time they spend with each parent are decided in the same way for married and unmarried parents, with the child’s welfare at the centre. Our child arrangements team can help.

An unmarried father usually has parental responsibility if he is named on the birth certificate (for births registered in England and Wales from 1 December 2003). If not, it can be obtained by agreement or a court order.

There is also an extra route for unmarried parents. A claim can be made under Schedule 1 to the Children Act 1989 for the benefit of a child. This can include a home for the child to live in while they are growing up, or lump sums for particular needs. Any property provided this way is usually for the child’s benefit and often returns to the paying parent later.

The differences are just as important on death. If a married person dies without a will, their spouse inherits under the intestacy rules. An unmarried partner does not inherit anything under those rules, however long the relationship.

A surviving cohabitant who lived with their partner as if married for at least two years immediately before the death may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. These claims are possible, but they can be stressful, slow and uncertain.

Tax treatment differs too. Gifts between spouses and civil partners are generally free of inheritance tax, but gifts to an unmarried partner are not. Pension death benefits may depend on the scheme rules and on whether you have named your partner. The simplest protection is for both of you to make a will; see our will writing page.

Whether you are married or not, a joint mortgage needs careful handling when you separate. The most important point is that you are both responsible for the whole mortgage, not just half of it. If one of you moves out and stops paying, the lender can look to the other for the full amount, and missed payments can affect both of your credit records.

The usual options are:

• Sell the property and divide what is left after the mortgage and costs are repaid, in line with your shares.
• One of you buys the other out. The person staying usually needs the lender to agree to take the other off the mortgage, or needs to remortgage in their sole name, and the ownership is changed by a transfer of equity.
• Keep it jointly for a period, for example until children finish school, with a written agreement about who pays what and when it will be sold.
• Let the property, although this normally needs the lender’s consent and brings its own responsibilities.

Whatever you decide, keep paying the mortgage while you sort things out, talk to your lender early, and put any agreement in writing. Depending on the figures, stamp duty can sometimes apply when one unmarried partner takes over the other’s share and the mortgage that goes with it, so take advice before you agree a buy out. Our conveyancing team, including our Scunthorpe conveyancing and Goole conveyancing teams, can handle the transfer and any remortgage work once terms are agreed.

Only with the lender’s agreement. Your former partner cannot simply release you, and you cannot remove yourself. The lender will usually want to be sure that the person keeping the property can afford the mortgage alone. If they cannot, the realistic choices are often a sale, or keeping the mortgage in joint names for a set period under a clear written agreement.

Until the lender formally releases you, you remain liable for the full debt, so it is wise to keep an eye on the account and to take advice before you move out.

The government has said it intends to reform the rights of cohabiting couples in England and Wales, and there has been a long debate about giving separating cohabitants some protection. However, the details and timing are not yet settled. Until any new law actually comes into force, the rules described in this article still apply, so it is important not to rely on changes that may or may not happen. We will update this guide when the position becomes clear.

A few practical steps make a big difference:

• A declaration of trust when you buy, recording who owns what share and what happens to any unequal deposit.
• A cohabitation agreement setting out what happens to the home, savings and other assets if you separate. Our article on why you need a cohabitation agreement and our prenuptial and cohabitation agreements page explain how these work.
• Wills for both of you, and a review of pension nominations and life insurance.
• Keeping records of who paid what towards the property.

None of this is unromantic. It simply means you both know where you stand, which usually makes life calmer for everyone.

Our family team, including Associate Solicitor Tracy Talbot, helps couples in Scunthorpe, Goole and across North Lincolnshire and the East Riding, whether they are planning ahead or going through a separation. We can prepare cohabitation agreements and declarations of trust, advise on your options for the home and a joint mortgage, and help you reach a fair agreement without going to court wherever possible. Visit our separation solicitors page or our family law page to find out more.

We offer an initial consultation of up to one hour for a fixed fee of £150 plus VAT (£180), and we will always give you a clear estimate before any further work. Call us for a friendly, no obligation chat about your situation.