When a relationship has broken down and you are contemplating separating, a key concern will be where you will be able to live, especially if you have children and have built a family home together over many years.
‘Your rights will depend upon your marital status and, if you are not married, whether you have any formal agreement regarding the property’, explains Sam Hulse, Partner family law at QualitySolicitors Parkinson Wright in Droitwich who outlines the various entitlements, and what steps can be taken to protect your interest.
The immediate problem
While financial negotiations about who gets what property may take a while, if your relationship has broken down your immediate concern may be to secure your continued ability to live in your home.
If you are married, you have a legal right to occupy the home regardless of whether you are a legal owner on the title deeds.
If you are co-habiting, it is possible to apply to court to obtain an occupation order which, if granted, would allow you to continue to live in the house. This is usually just a temporary measure, but it may give you sufficient time to prove your entitlement to an interest in the house.
A matrimonial home
If you are married or in a civil partnership there are laws to ensure that the value in the matrimonial home will be divided fairly, even if you are not legally the owner.
The starting point for negotiations tends to be an equal split, but there are a number of factors that can reduce or increase each proportion. For example, if there are children their housing needs will be considered and whoever resides with the children will generally be allowed a larger share of the property value or may be able to postpone dividing the house until the children are older.
The duration of the marriage will be an important factor, as you may receive much less than 50 per cent of a house purchased by your spouse if you divorce after just a year or two. Your contribution to the household bills will be taken into account and any proof that you can provide, such as bank statements, to show your contribution will be helpful.
For unmarried couples who live together, there is no automatic right to property which you do not own. If your relationship has broken down, then the first step is to explore reaching an agreement with your partner. You may discuss the issues directly with your partner, or you may find it beneficial to have the assistance of an independent family mediator.
If you had drawn up a cohabitation agreement when you moved in together, then the terms of that agreement should be looked at. If one of you does not wish to abide by that agreement, then you should seek legal advice as soon as possible on the enforceability of the agreement and your options.
If you do not have a cohabitation agreement, it may be possible to negotiate a deed of separation. This would be a contract between you and your partner that outlines how the house value is to be divided and what your future living arrangements will be. It requires both parties to take separate legal advice on their entitlements.
If you are unable to reach agreement you can issue court proceedings. If you contributed substantially to household expenses in the belief that this was a joint home, then the onus is on you to show to the court that you have an entitlement to an interest in the house or apartment. This will involve looking at more than just who paid the bills. The intention of you and your partner will be looked at by the judge.
Any direct discussions you had as a couple that would be evidence of an agreement or understanding between you both will be important. It will help your case if you can provide details of when and where these discussions occurred. If the agreement was recorded in writing that will improve your case. This may have been formally in a cohabitation agreement setting out the arrangements between you both in the event of your separation, or informally in an exchange of e-mails or text messages outlining both of your intentions.
If there were no direct discussions then the court will look at the conduct between you, including contributions made to the house. These contributions need not necessarily be direct contributions to the purchase or mortgage, but should be more than what is ordinary in a cohabitation situation. So, if you have solely paid all the household bills it could be argued this is above and beyond what is expected of an ordinary cohabitee.
The length of time you have cohabited will not necessarily be critical. If the court is satisfied that there was an intention between you both to share the property and that you have been at a detriment because of that, then the court will grant you an interest of some level.
What that level is depends on the individual circumstances. The court will look at the whole course of dealings between you both, such as: the level of contributions; if your finances were pooled; if you have children to support together; if you contributed to any renovations of the home.
If there is evidence of direct discussions between you both then your entitlement will generally be in line with what was agreed at that time.
For further information, please contact Sam Hulse, Partner on 01905 721600.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published