Cohabitation: Caught up in a property dispute? How to prepare for the best possible outcome
The importance for unmarried, cohabiting couples of carefully preparing for any legal dispute over shared property has been highlighted by recent developments in this complex area of the law.
Even though a court case decided in December 2022, Hudson v Hathway, seemed to bring some longed for legal clarity, another more recent dispute has illustrated that a claim can still fail if not properly presented or supported by evidence.
The key takeaway is that meticulous record keeping and early legal advice are essential to make sure you put yourself in the best position for the outcome you want.
- Wards Solicitors’ highly experienced and specialist Cohabitation Team can assist in disputes concerning the ownership of property, whether registered in joint names or one person’s sole name.
What happened in the Hudson v Hathway dispute?
Jayne Hathway and Lee Hudson bought a home in joint names without a declaration of trust confirming what share of the property they each owned.
When they parted, they agreed via email that Ms Hathway would keep their jointly owned home, and Mr Hudson would keep his other assets.
However, some years later when the relationship between them deteriorated, Mr Hudson tried to go back on this agreement by seeking the sale of the house and half its proceeds.
On appeal, the judge awarded the entire beneficial ownership of the house to Ms Hathway with two important points to carry forward:
- The emails between the couple, written and ‘signed’ by Mr Hudson with an email signature, were enough to meet the legal requirements for transferring his rights to the benefits of that property to Ms Hathway (known in legal terms as the disposing of a beneficial interest) which must be in writing and signed by the person disposing of it.
- Detrimental reliance remains vital when establishing a varied beneficial interest. In short, it must be proved that one person has relied on the promises of another and been disadvantaged as a result. In this case, the assurances that Ms Hathway could keep the family home led to her paying the mortgage, giving up her claims to Mr Hudson’s pension and other assets and not pursuing child maintenance, clearly to her detriment.
How does the more recent cohabiting couple property dispute cloud the waters?
This case – Dervis v Deniz – also pivots on an email trail remarkably similar in content to Hudson v Hathway. Crucially though, the appeal court dismissed it because it was not properly presented or backed up by enough evidence.
The couple, Ms Dervis and Mr Deniz, had shared Ms Dervis’ former marital home. When Mr Deniz first moved in, Ms Dervis owned it with her sister but in 2018 it was transferred into the couple’s joint names.
This transfer included a declaration of trust that stated the cohabiting couple were to own the property as joint beneficial owners but afterwards, the relationship broke down.
At the initial hearing, the High Court ordered that the property must be sold, ruling against Ms Dervis.
However, referring to the principles established in Hudson v Hathway, Ms Dervis tried to appeal against this order citing the email trail as evidence that Mr Deniz has effectively disposed of his beneficial interest in the property to her.
In this case though, the judge refused Ms Dervis permission for the new claim.
Why do these property dispute email trails have different legal results?
In many ways, in content, the emails are remarkably similar.
Mr Deniz sent several emails to Ms Dervis including one that read: ‘I give my full consent to be removed of the mortgage at [the property].I can be present to sign any documents needed. Not seeking any financial interest in the property. Give me till the end of the month I will transfer £6000 pounds to you’.
The critical difference is the view the court took of them. In Dervis v Deniz, emails had not been part of the pleaded case put forward at trial or examined closely and as a result, because the procedural foundations had not been properly set, they could not be sufficiently explored within the context at the time.
What are the lessons from this shared ownership property dispute?
Getting your ducks in a row when it comes to preparing for any property dispute is vital:
- Emails expressing an intention to transfer or give up property ownership, however informally phrased, potentially carry serious weight and should be treated accordingly.
- A one-off email might not be enough to base a case on – a string of emails may well be.
- Recording any detriment you suffer as a result of relying on an agreement from a former partner is crucial – for example, taking on the mortgage because you think the property has been promised to you.
Get in touch
This is a complicated, emotional and evolving area of the law. Taking early advice is essential so that our specialist Cohabitation and Dispute solicitors can guide you through the complexities to put you in the best possible position.
Chloe King and Rebecca Max can help in disputes concerning the ownership of property, whether registered in joint names or one person’s sole name.
This includes unmarried couples, family members and friends who may find themselves in a difficult situation if one person wishes to sell the property or move out.
Wards Solicitors wins high praise in the 2025 edition of the independent Legal 500 guide of outstanding legal professionals for its exceptional professional service standards and high levels of technical expertise.
We have also recently been named Regional Law Firm of the Year by Bristol Law Society.
Contact Chloe or Rebecca to arrange a free 30 minute, no obligation initial consultation.
- Email: chole.king@wards.uk.com Phone: 0117 929 2811
- Email: rebecca.max@wards.uk.com Phone: 01454 204880