My partner and I have separated, but we cannot agree on what should happen to the family home. What can I do?
Family Law
The law
The law governing property disputes between unmarried couples is very different from the law that applies to married couples. If the parties were married, the Court would have wide discretionary powers under the Matrimonial Causes Act 1973. For unmarried couples (often referred to as cohabitants), claims are instead governed by the Trusts of Land and Appointment of Trustees Act 1996. This is a complex area of law in which Judges have wide discretion, meaning outcomes can be difficult to predict.
Office Copy Entries from the Land Registry will confirm who is registered as the legal owner of the property. The legal owner of a property is the person registered at the Land Registry. The beneficial owner is the person entitled to its benefits.
Jointly owned property
Joint Tenants
If you own the property as joint tenants, you both own the whole of the property together and are treated as a single legal entity. The starting point is that the property is owned in equal shares (50:50), even if one party contributed more financially, unless there is evidence that the parties subsequently intended a different arrangement.
Tenants in Common
If you own the property as tenants in common, the beneficial ownership is divided into specific shares. The starting point is the shares set out in the Transfer Deed or any Declaration of Trust, unless there is evidence that the parties subsequently intended a different arrangement.
Solely owned property
Where a property is owned in one person’s sole name, the starting position is that the legal owner also owns the entire beneficial interest. However, the other party may still be able to claim a beneficial interest in the following ways:
Express Declaration of Trust
Where the Transfer Deed states that the property is held on trust, or where there is a separate written Declaration of Trust setting out the beneficial ownership.
Resulting Trust
Where the other party has made financial contributions to the purchase price, mortgage or improvements, and there was a common intention that their beneficial interest would reflect those contributions.
Constructive Trust
Where there was a common intention that the other party would have a beneficial interest and they acted to their detriment in reliance on that intention. For example, giving up a career to care for children may allow the Court to infer such an intention.
Proprietary Estoppel
Where the legal owner led the other party to believe they had a beneficial interest, the other party relied on that belief to their detriment, and it would be unfair for the legal owner to deny that interest.
How to resolve the dispute
You should try to reach a negotiated settlement either direct or through solicitors. If an agreement cannot be reached, either party may apply to the Court for a determination. Before issuing proceedings, alternative dispute resolution methods, such as mediation, arbitration, neutral third-party evaluation and collaborative law should be considered. Resolving disputes early without Court proceedings is encouraged. In most cases, parties are required to follow a Pre-Action Protocol before commencing Court proceedings. This sets out the steps the Court would usually expect parties to take, including the exchange of a Letter of Claim, a response and relevant documents.
What factors will a Judge consider?
When deciding the claim, the Court will consider:
- The intentions of the parties.
- The purposes for which the property is held.
- The welfare of any minor who occupies or might reasonably be expected to occupy the property.
- The interests of any mortgage lender or other beneficiary.
What Orders can the Judge make?
The Court can make the following Orders:
- The Court can determine who is entitled to occupy the property, who holds the legal and beneficial ownership and in what proportions. However, the Court cannot change co-ownership or adjust the ownership percentages.
- The Court can order the property to be sold, with the proceeds divided between the parties. The Court cannot force one party to sell directly to the other but may order a sale with a pre-emption period allowing one party to buy.
- Even where shares are agreed, either party can seek an adjustment for contributions made after separation, such as mortgage payments, occupation rent or improvements. This is called equitable accounting. Only post-separation contributions are usually considered. The Court has discretion to adjust shares to achieve a fair outcome and will generally take a broad approach, requiring supporting evidence.
Costs
Costs are at the Judge’s discretion, but the usual position is that the unsuccessful party is ordered to pay the majority of the successful party’s costs.
Claims under Schedule 1 of the Children Act 1989
Where an unmarried parent has the care of a child, they may be able to apply under Schedule 1 of the Children Act 1989 for financial provision. These claims are needs-based ‘top-up’ provisions and can be complex to pursue.
The Court can make Periodical Payments Orders, usually for situations outside the statutory child maintenance scheme, such as for educational expenses, disability-related costs or where the child’s age falls outside the scheme.
The Court can also make Capital Orders, including Lump Sum Orders (e.g. for school fees or a family car) or property-related orders. Property orders can involve transferring or settling property to the Applicant for the child’s benefit until a specified event (e.g. the child turns 18 or completes education) or directly to the child.
If you need any assistance with a Family Law matter, please do not hesitate to contact our experienced Family Team at Mayo Wynne Baxter on 0800 84 94 101. Our specialist team can advise you as to the best possible ways to resolve matters.