Relationship Breakdown – Frequently Asked Questions

Updated July 2025

Introduction

Couples who live together but are not married or in a civil partnership can still experience difficulties when it comes to sorting out shared property following a relationship breakdown. Contrary to popular belief, there is no such thing as a ‘common law marriage’. As far as the courts are concerned, the law that applies to people simply living together is very different to what applies to married couples and civil partners. This guide should not be relied upon as legal advice, and you should contact us for advice on your specific circumstances.

What is the difference between joint tenants and tenants in common?

When a couple own a property, they do so in one of two ways:-

• Joint tenants; or
• Tenants in common.

If they own the property as joint tenants then, in the event of the death of one of them, that party’s interest in the property will automatically pass to the surviving joint tenant. If they hold the property as tenants in common, then in the event of the death of one of them, that party’s interest will pass through their estate to whoever is named in their will or whoever is entitled under intestacy rules. Tenants in common can also make a declaration about their interests in the property, and how much each of them is entitled to.

What am I entitled to?

 If an express declaration of trust has been entered into, which may be as simple as ticking a box on a Transfer Deed (a TR1) when a property is purchased, it will almost certainly be determinative of the parties’ respective interests in the property.

If the property is owned jointly but there is no express declaration of trust then it is possible to try to work out what each  person might be entitled to having regard, amongst other things, to conversations, understandings and agreements at the time of the purchase, information about who contributed what to the purchase price, and the way in which the parties dealt with each other in relation to the  property.

My name is not on the title deeds.  Am I entitled to anything?

 This is a particularly complicated question.  It is possible that someone who is not named on the title to a property can still have a beneficial interest in it.  This can arise as a consequence of:-

• A Resulting Trust, a concept rarely looked at nowadays, but which would consider the parties’ financial contributions to the property.
• A Constructive Trust, which requires a common intention between the parties that the property belongs to them both and that the person making a claim acted to their detriment in relying on that understanding, and it would be unconscionable to deny them an interest in the property.
• Proprietary Estoppel – which requires a representation or assurance made to the person seeking to make a claim, reliance on it by them, and detriment to them as a consequence.

What if we cannot agree?

 You should always attempt to negotiate a reasonable settlement about property before embarking upon a formal court application.  The court expects separating couples to attempt a form of Non-Court Dispute Resolution (“NCDR”) if possible.  A failure to attempt NCDR could result in costs orders being made.  NCDR can include:-

• Communications between solicitors.
• Mediation – essentially a forum within which you and your former partner try to agree as much as possible in a series of meetings with an independent mediator.
• Arbitration – where an arbitrator, paid for by the separating couple, takes on the role of judge, hears arguments and determines the outcome.

If negotiations founder for one reason or another, court proceedings can be issued.  These are pursued under the Trusts of Land and Appointment of Trustees Act 1996.  The precise procedure can vary from case to case, depending upon the particular circumstances.

Where do I start?

 It will always be helpful if you know the rough value of the property and the redemption figure for any mortgage secured on it.  Your solicitor will be able to find out the way in which you hold the property (i.e. joint tenants or tenants in common) or whether the property is just held in one party’s name.  Access to the file of the solicitors who acted on the purchase of the property, however, may turn out to be vital.

What can the court do?

 In an application under the Trusts of Land and Appointment of Trustees Act, a court will want to establish what each of you owns (even if that is not expressly apparent on your title deeds). However, it is not reallocating assets from one person to another. What it can do, amongst other things, is:-

1. Declare your respective interests in the property (i.e. what proportion you each own).
2. Order that a property should be sold.
3. Direct adjustments to be made to the division of the sale proceeds (a process known as equitable accounting, which might, for instance, have regard to payments made towards the mortgage since separation, or the fact that one person has been locked out of their capital since they left the property).

How much will it cost?

 At the outset of your case, we will give you an estimate of the likely cost, including details of the way in which charges are calculated.  For the sake of clarity, you will receive written confirmation of our estimate and, as the case progresses, regular updates.  This will enable you to be absolutely clear about your actual and anticipated costs.

The general rule in cases brought under the Trusts of Land and Appointment of Trustees Act is that the loser pays the winner’s costs (or proportion of them).  However, it is a matter for the court to determine what costs order to make in every case, depending on the specific facts of that case.

What about the financial needs of children?

 As for married couples, if child maintenance cannot be agreed then the first port of call is the Child Maintenance Service.  The online Child Maintenance Service calculator:- Calculate your child maintenance – GOV.UK (www.gov.uk) can provide a helpful indication as to the maintenance that should be paid.

For high earners who have to pay child maintenance, or for particular types of expense, it is possible that top up maintenance can be pursued through the courts in the absence of an agreement.

In addition, it is sometimes possible to make an application for additional capital on behalf of a child under Schedule 1 of the Children Act 1989. Such applications are not common, but in the right case they can be helpful to enable a child to be rehoused, or for other capital expenses to be met on behalf of that child.