You may be living with a partner and even have children but have you considered how the law deals with the breakdown of your relationship?
Did you know that even if you have children, and perhaps have been living together for years, if your home is in your partners sole name then you may potentially have no rights to stay living in your home or to claim an interest in the equity?
Unlike divorce, cohabitees only recourse to assistance through the law if this is the case is through the Trust of Land and Appointment of Trustees Act 1996 and (if you have children) the Children Act 1989 (CA 1989).
So let’s see where you stand.
If the property is jointly owned then subject to any declarations as to ownership arguably the starting point would be a 50/50 division – this can be a bitter pill if you have paid more than the other party towards the property. You can seek to argue that the division should be different but it is a heavy burden to argue. You will need to show that there is a compelling reason why this should be different. A Declaration or Deed of Trust can assist this argument but you would need to do this at the time of buying or shortly after purchase of a property and the party giving away part of their interest would have to have separate legal advice to make this secure.
If the property is owned by one party then to make a claim under the Trust of Land and Appointment of Trustees Act 1996 or TOLATA for short you will need to show one or more of the following:
- That you have contributed capital towards the purchase of the family home (this could be by way of paying a sum as deposit towards the property; and/or
- You have paid capital towards the family home (this could be by way of perhaps paying for an extension of substantial works to the property); and/or
- Contributing towards the mortgage and other bills (although this on its own may not be sufficient without other factors).
- That the house was bought for a purpose, that this purpose has not ended (but note that just having children will not necessarily meet that criteria) and there is a common intention that the property remains available to you;
- That you have acted to your detriment (ie. giving up your own owner-occupied or secure property to live in this property/invested time and money into doing up the property believing you had an interest and it would be your home).
NB: The latter two points “common intention” and “detriment” are required together and will not on their own create a financial interest as the Court will be slow to infer an interest just on “common intention” alone. These two together are commonly considered as “Constructive Trusts.”
Section 14 of TOLATA allows the Court to adjudicate for a couple the interest that they each have in property (if it is not clear) using the facts above and relevant case law to assist it in defining the same. The Court however cannot order a transfer or for property to be retained by one party without payment to the other party (unlikely matrimonial law where the Court can order transfer with one party having to wait for their interest until a later date) although it is possible with a duel application under Schedule 1 of the Children Act 1989 that an additional sum could be paid to the other party (who has the care of the children) but that latter sum or ability to remain in the property
terminates when the child reaches 18 years.
As you can see this is a complex matter. To avoid such difficulties couples in this situation should consider making provision for the other and more particularly their children and this may be by way of a Cohabitation Agreement, a Declaration of Trust for property and setting out what should happen if things fall apart and Wills to enable lifetime occupation for example.
If you would like further information about this, please do not hesitate to contact Fiona Pawsey at our Family Department on 01202 877400 or by email: fiona@newnham-jordan.co.uk.
