Property rights for unmarried couples are very different from the laws relating to married couples or couples in a civil partnership although issues involving children and injunctions are dealt with in broadly similar (although not identical) ways. It is important to remember, of course, that in this context “cohabitees” mean any couple who live together outside of marriage or a civil partnership and that may include same sex relationships. Co habiting rights are the same in terms of property whether the parties are the same sex or not. The big difference is between the status of marriage or civil partnership and that of co-habiting. Children are usually less of an issue in same-sex relationships but the law as it affects property rights is the same whether the cohabitees are of the same sex or not. It is only the focus of any dispute which is likely to be different.
Rights remain the same in terms of property if the relationship between two people who are not married or in a civil partnership breaks down. The distinction between “his, hers and theirs” (or, indeed, between “his, his and theirs” or “hers, hers, and theirs”) is very real in this situation and each person is entitled to claim their own property. This is in marked distinction to the position between married or civilly partnered couples where the courts can divide all property (“his, hers and theirs”) in whatever way they think best regardless of who actually owns them. In the case of divorce following marriage breakdown or the dissolution of a civil partnership the courts have a very wide jurisdiction over all their property and, broadly speaking, such property is usually divided between the parties according to their perceived needs.
It is important to appreciate the importance of this distinction. For example, it is quite common following a divorce (which from now on will also be taken to include the dissolution of a civil partnership) for the former matrimonial home to be transferred into the sole name of the ex-wife who continues to live there with the children of the marriage. The ex-husband may also be obliged to pay maintenance for his children and/or his ex-wife. The reason this often happens is that the need of the children to have a stable home environment and a roof over their heads quite frequently dictates that the house should be transferred into the sole name of the ex-wife. This may be despite the fact that all mortgage payments, for example, may have been made by the ex-husband, perhaps over many years. Such a situation often causes bitterness for understandable reasons.
The case of an unmarried couple not in a civil partnership is very different. Their property rights remain exactly the same after the split as before. Any property continues to belong to its owner and that is usually the person whose name is on the title deeds. Naturally, there is some room for dispute over this but that is the over-riding principle and the courts have no jurisdiction to ignore it. So if, for example, a man owns a house and moves his girlfriend in but the relationship subsequently breaks down there is no question but that the house remains the property of its owner and the girlfriend has no claim on it whatever – whether there are children or not. However, it is fair to say that a complication that may arise in the case where cohabitees have dependent children is that the courts have jurisdiction to refuse to order a sale of the property until the children cease to be dependent or otherwise to need the property as their home while they are dependent.
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