Financial Settlements for Unmarried Couples

What is the difference between legal title and beneficial interests?
There are two aspects to the ownership of property; the legal title to property and the beneficial interests in it (the right to receive the profits or income from a property or the right to live in it). Both may be vested in the same people, but this is not always the case.  Put simply, parties’ beneficial interests in a property will determine their share of the profit/equity.

What is the difference between joint tenants or tenants in common?
At the time of purchase, you will have been asked to declare your legal and beneficial interests. Beneficial ownership can be held as joint tenants or tenants in common in equal or unequal shares.

Joint tenants have equal rights to the whole property.  If one joint tenant dies the whole of the property automatically passes by the rules of survivorship to the co-owning joint tenant.  As tenants in common, each party holds their own separate and distinct share and on death their share will not automatically pass to the surviving co-owner and instead passes in accordance with their Will, or if no Will under the Rules of Intestacy.

Express declaration
In the absence of fraud, mistake, or undue influence an express declaration of trust will be conclusive of the beneficial interests.   Joint tenants will equally be entitled to the profit or income from the property and equally have the right to live in it.

Tenants in common will be entitled to the profit or income from the property, either equally if they hold the property as tenants in common in equal shares or, if they declared it would be held in some other share they will be entitled to the profit or income in accordance with their deed of trust, cohabitation agreement or declaration in the Form TR1.

No express declaration
This situation is most likely to apply to purchases pre 1 April 1998 and before the introduction of Form TR1 requiring parties to declare their beneficial interests.

Where a property has been purchased in joint names there is a presumption that the beneficial ownership is held jointly in equal shares. This presumption can be displaced if it can be shown that the parties had a different common intention at the time they acquired the property or they later formed the common intention that their respective shares would change.

If it is not possible to ascertain by direct evidence the extent of the interest the court may either infer the parties’ shared intentions in relation to the property in the light of their whole course of conduct in relation to it or impute an intention that the claimant is to have a fair beneficial share in the property.  The court will assess the quantum of the fair share having regard to the whole course of dealing between the parties in relation to the property.

Can you make a claim against property if you are not the legal owner?
A sole legal owner will be presumed to be the sole beneficial owner unless the contrary can be shown by the non-owning claimant. A claimant will first need to show that there was an agreement that they should have a beneficial interest in the property, which may be expressed or inferred from conduct, and that they have acted to their detriment. If an agreement can be shown to have been made, then absent agreement about the extent of the interest the court may either infer the parties’ shared intentions in relation to the property by reference to their whole course of conduct in relation to it or impute an intention that the claimant is to have a fair beneficial share in the property.

The standard of proof is the balance of probabilities.  The burden of proof rests on the party who seeks to show that the beneficial ownership is different from the legal ownership.

When quantifying the beneficial interests, the court will assess each party’s share as that which it considers fair, having regard to the whole course of dealing between them in relation to the property.

What is proprietary estoppel?
Proprietary estoppel arises from the courts’ equitable jurisdiction to ‘adjust’ rights over property if the assertion of strict legal rights is found to be unconscionable. It arises most commonly where a property owner encourages another to act to their detriment in the belief that they will obtain an interest in the property.

A claimant seeking to rely on proprietary estoppel must establish: -

1. A representation made or assurance which encourages or allows the claimant to believe that they have or will have some right or benefit over the property;
2. Reliance by the claimant on the representation or assurance;
3. Some detriment incurred by the claimant as a consequence of that reliance;
4. It would be unconscionable for the property owner to go back on their representation or assurance.

Detriment is not confined to pure financial detriment.  Detriment could for example be pleaded if the claimant gives up a job or their own property or rental accommodation upon reliance of the respondent’s assurance.

A claim for proprietary estoppel can be pleaded independently or in the alternative to a constructive trust. It can also constitute an exception to the general rule that an express declaration of trust is conclusive of the beneficial interest.

Engaged couples can make an application under section 17 of the Married Women’s Property Act 1882 provided that no more than three years has elapsed since the agreement was broken off.   There may be an advantage to bringing a claim under section 17 as the definition of property is wider than simply land or buildings and it can also apply to property abroad.  If a respondent has disposed of an asset in respect of which a claimant has a valid claim the court can also order payment to the applicant to represent the value of their interest in that asset or order the transfer of an asset into which the original property can be traced.

Section 37 of the Matrimonial Proceedings and Property Act 1970 (MPPA 1970) is also available to an engaged couple and can be used where a party has made a substantial contribution in money or money’s worth to the improvement of real or personal property, whether or not that person has a beneficial interest in the property.  Property under section 37 is again given a wider definition than simply land and buildings and subject to any agreement to the contrary, there is the advantage of an automatic presumption of an interest compared with having to establish the tests under trust law principles.

If you are a joint legal owner or have an interest in a property and you are not able to agree with your cohabitant or former cohabitant how the equity in the property should be distributed or whether it should be sold, you can make an application under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) to ask the court to determine the issues between you.

Who can apply?
An application can may be made by any person who is a trustee of land or has an interest in trust property.  You will be a trustee of land if the property is jointly owned and you will have an interest in the trust property if the property is solely owned but you assert you have a beneficial interest in it. Trust of land means any trust property which consists of or includes land.

The person who makes the claim against a property is called the applicant. The person against whom the claim is made is called the defendant.

What orders can the court make?
The relevant legislative provisions are set out in TOLATA 1996 and the Civil Procedure Rules 1998 (CPR). The court has a broad discretionary range of powers and under section 14 TOLATA 1996 can make orders:

• regarding the exercise of the functions of the trustees, which may include relieving them of an obligation to obtain the consent of, or consult, any person in connection with the exercise of their functions, eg an order for sale, a postponement of sale or payment of an occupation rent; or
• declaring the nature or extent of a person's interest in property subject to the trust. In the absence of evidence of what shares in the property were intended, the court can impose a fair solution based on the parties’ dealings about the property.

What factors does the court have to consider?
Under section 15 of TOLATA 1996 the court must consider:

• the intention of the person or persons who created the trust;
• the purposes for which the property subject to the trust is held;
• the welfare of any minor who occupies or might reasonably be expected to occupy the property subject to the trust as their home;
• the interests of any secured creditor or any beneficiary.

In the absence of evidence of an agreement that the property is to be held in the way the applicant asserts, the court may, where appropriate, infer or impute a common intention from the conduct of the parties.

If you or your family have a close connection to more than one country, you will need advice on which jurisdiction you want to govern your agreement and to ensure that you can enforce the terms of your agreement or court order abroad.

The law on property and maintenance varies from country to country and therefore it is important you understand the law in each country and can make an informed decision on which jurisdiction to issue proceedings in and which jurisdiction you want to govern your agreement.

We work closely with lawyers and other professionals around the world to ensure that your interests are protected, wherever you and your property are based.