"It's My House Not Yours": Separating Unmarried Couples, And The Houses They Own ' The Legal Framework

• Published date: 24 May 2022
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Real Estate, Landlord & Tenant - Leases, Trusts
• Law Firm: Gatehouse Chambers
• Author: Ms Laura Tweedy

Laura Tweedy examines how the law treats the ownership of property of unmarried couples who separate. This is a refresher guide for practitioners dealing with trusts of land and property fallout following unmarried couples' relationship breakdown.

Couples who live together may legally co-own the property they live in, in which case the legal title at the Land Registry would show both of their names on the ownership register as joint tenants. However, their equitable interest may differ and be as joint tenants, or tenants in common. It may be set out expressly, or it may not. Alternatively, only one of them may own the property on the title, despite them both living there. In this article I shall consider these scenarios, what their ownership means and how it will likely be divided upon their break up.

Couples who own the property legally as joint tenants but the equitable ownership is not expressly set out

Common intention constructive trust

Stack v Dowden [2007] UKHL 17, is the key case setting out what happens to property which is legally jointly owned by couples who then separate. In Stack v Dowden an unmarried couple had lived together for many years, had both contributed financially to the purchase of the property and the couple were both legal owners. There was no express declaration of their beneficial interests in the property. The House of Lords decided, in such cases the unmarried couple held joint and equal shares as joint tenants in equity, unless a clear contrary intention could be shown.

The House of Lords established the following additional key principles:

• The property held in joint names legally results in both legal and beneficial joint tenancies. In order to prove that is not the case, the owner seeking to demonstrate that they hold the equitable interest as tenants in common has the burden of proving this intention.
• The court then looks at the parties' shared intentions in relation to the whole course of dealings with the property and the following factors are relevant
  • advice or discussions at the time of purchase
  • why they purchased jointly
  • why the house was purchased
  • the nature of their relationship
  • are there children and a responsibility to provide a home
  • how was the property purchase financed in regards to the deposit and subsequently
  • how did the parties arrange their finances, household expenses and outgoings

Stack v Dowden was followed up by the Supreme Court in Jones v Kernott [2011] UKSC 53, in which case an unmarried couple purchased a property held legally in joint names and both were responsible for the mortgage. There was no express declaration of their beneficial interests. As such, the starting point following Stack v Dowden was that they owned the property as joint tenants in both law and equity. However, the joint tenancy presumption could be displaced...