In this area, there is tremendous scope for litigation between unmarried cohabitants on separation. When a partner moves into a property already owned by the other he or she will not automatically acquire a right to a share of that property, which position is the same no matter how long they live there together. However, today many people still believe that there exists in English law the concept of a common law marriage. We typically read in newspapers the terms “common law husband” or “common law wife”. Those terms are a legal nonsense. Those terms have never had any legal recognition from the English Courts and are simply meaningless.
If the parties have discussed sharing the benefit of the equity in the property in which they live together and it can be established that it was intended that the equity in/sale proceeds of the property should be shared, it may be possible under trust law principles for the non-owning partner to establish a share/interest in the property. If the non-owning partner contributes directly towards the mortgage repayments or advances capital towards the costs of any works of renovation or extension it could be argued that those payments were made on the basis that by doing so the non-owning partner would acquire a share of the property. A contribution towards the acquisition costs of the property purchased in the name of only one partner (but not a contribution towards the legal costs of purchase) may well be enough for there to be a presumption of co-ownership although such presumption can be rebutted by contrary evidence (eg, that the financial help was by way of a gift or loan).
Even in the absence of a common intention that both are to share in the property, the Court may still find that, having regard to the conduct of both parties (including any discussions between them, how the household costs and costs in respect of the property were funded, any mistaken belief by the non-owning partner as to their legal rights and any expenditure made on the basis of that mistaken belief and any reliance by the owning partner on such mistaken belief – Matharu v Matharu (1994), Proprietary Estoppel), the non-owning partner should share in the equity and make an order accordingly.
Where the property was purchased jointly however, but where the parties made unequal contributions to the purchase price or to the mortgage repayments, the starting point could be that the equity should be split equally unless the party seeking a larger than one half share can demonstrate to the Court that that was not intended – see Stack v Dowden .