Who owns the family home?

In a recent case before the High Court, a judge dismissed the claim brought by Mrs Maliyah Al Jaber in respect of the £8.3 million family home owned by her husband, billionaire Sheikh Mohamed Bin Issa Al Jaber. 

The claim arose in circumstances where liquidators were seeking to charge the property to settle his significant outstanding debts. To prevent this from happening, the couple argued that the property, located on Winnington Road in Hampstead, actually belonged to the wife, despite being in the husband’s sole legal name. If they were able to successfully prove that was the case, the liquidators would not be legally entitled to charge the property. 

One of the key points of interest in this case was the relatively novel argument the married couple made to justify their claim that the house in fact belonged to the wife. Unusually, Mr and Mrs Al Jaber argued that the house belonged to Mrs Al Jaber by virtue of an Islamic custom said to require a husband to provide a home for his wife, which then becomes her property. 

In the alternative, they argued that at least part of the property belonged to the wife under principles of English law relating to trusts of land or an equitable doctrine known as ‘proprietary estoppel’. 

Unfortunately for them, the court did not agree that the Hampstead house did actually belong to the wife. They were not persuaded by the argument about Islamic customs. The judge could not find sufficient evidence that the custom actually existed. Even if it did, it did not explain why the house was not legally owned in Mrs Al Jaber’s name rather than her husbands. 

The other routes the couple pursued to establish her interest were also unsuccessful. As a result, the house was deemed to be under the sole ownership of Mr Al Jaber with the consequence that liquidators would be legally entitled to charge the property as they intended to.

Although the facts of this case were very usual and involved a married couple, it shines a light on an area of law which is currently the subject of a wide demand for reform amongst the family law community and beyond: cohabitation law. 

‘Cohabitation law’ as it is widely known, is the law which governs the millions of families in England and Wales who, for a myriad of reasons, have chosen not to marry or enter into a civil partnership. Despite unmarried couples making up an increasing proportion of the population (The ONS reports that the number from 5.5 million in 2024 to 6.5 million in 2024), the law has not kept up to protect the financial interests of people who choose to live this way. 

The myth of the common law marriage is still pervasive, but the reality is that cohabiting couples have very different, inferior rights, to spouses/civil partners. Many individuals are left in serious financial hardship following a relationship breakdown, with no automatic entitlement to share in the family home if it is not in their legal name and no right to ongoing financial support (except for child maintenance) from their ex-partner even if they are the lower earner or do not work at all.

Express trusts

Cohabiting couples who do wish to assert a right in a property are left with limited options under the current law. Like Mrs Al Jaber in this recently reported case, one of the routes will be for them to show that they are a trustee of the property. This could be an express trust, which formally records the couple’s agreement that the interest in the property would be shared, even though it is one person’s legal name.

We regularly prepare evidence of such trusts, in the form of a document known as a Declaration of Trust or Deed of Trust. For couples choosing to move in together, this helps to avoid uncertainty and costly litigation in the event of a future separation.

Common intention constructive trusts 

Another route, is to show that although there was no express agreement, there was a common intention constructive trust over the property. They are often established through evidence of joint contributions or agreements. 

To be successful, Mrs Al Jaber would have to have shown that she and her husband genuinely shared a common intention that she should have a beneficial interest in the house (even though it was in her husband’s name) and that she has acted to her detriment in reliance on that intention. In this case, she pointed to what she described as a ‘substantial contribution to the improvement of the property’, by maintaining the house for 34 years and overseeing various renovations. 

The judge was not convinced that this was sufficient to establish a trust. Indeed, these types of trusts can be very difficult to prove and can result in lengthy and costly litigation if not settled beforehand through non-court routes.

Proprietary estoppel

Mrs Al Jaber also asked the court to consider another route to prove she had an interest in the house: proprietary estoppel. Under this doctrine, an individual trying to assert a right to a property could argue that a promise was made to them regarding their right to own part or all of the property, that they relied on it to their detriment, and that it would be unjust for the court not to hold the promise. 

In Mrs Al Jaber’s case, she argued that, whatever her husband’s intentions were, she was entitled to an interest in the house because she believed that she had one and had relied on that belief for three decades. Like constructive trusts, successful claims of proprietary estoppel will depend on the specific facts of the case.

The misinformation surrounding cohabiting couples, along with the harsh reality of the limited legal options they have compared to married couples, have fuelled a call for serious reform. Even as far back as 2007, the Law Commission recommended introducing an opt-out cohabitation scheme, but this has not happened yet.

More recently, the Government confirmed plans to launch a consultation on cohabitation reform in Spring 2026. Whilst details of this are still awaited, this is an important step forwards in recognising that the rights of cohabiting couples needs reshaping. What any reforms will look like remains to be seen. Some people are in favour of bringing cohabitation law closely in line with the rights enjoyed by married couples; others think the scheme should be distinct, but still robust enough to protect people from relationship-generated economic disadvantages. 

One thing is certain, change is widely welcomed by the family law community. Whilst we watch this space, we continue to support individuals to protect themselves as best they can under the current law, whether that’s through the preparation of Declarations of Trust and Cohabitation Agreements, or following separation, through negotiating a fair outcome through non-court routes such as mediation and collaborative law.