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Understanding Cohabitation Disputes

What rights do I have if I’m not married to my partner?

In short the answer is very few.  The large majority of us would consider that if you have lived together with your partner for many years you would have the same rights as any married couple. The distressing and often unfair truth is that your legal position is entirely different. The term “common law wife/husband” is simply that, a term.

What happens to the property that we own if we separate?

Cohabitation disputes are largely about property. The first thing I ask a client is “how do you own the property”. Many clients do not know the answer to this question or give you response that bears no relation to the legal position. This is often because when you buy a property the topic of ownership is a tricky one to tackle and not a particularly romantic conversation to have! If you decide to buy a property with someone else you are asked by your solicitor how you wish to own this property. There are basically two options; Tenants in Common or Joint tenants. Unless you have specifically stated anything other than 50:50 the law will presume that if it is in joint names you own the property equally. Whilst it is not impossible it is difficult to rebut this presumption.

If separated couples have any difficulties with their property they are able to apply to court under the Trust of Land and Appointment of Trustee Act 1996. The court has a whole range of powers under this Act to assist parties. This can include making an Order for sale, transferring the property into one party’s sole name or making a declaration as how the property should be owned for example 60/40 etc.

What do I do if our home is owned solely by my partner and we have separated?

It is far more common to see a dispute arise when a property is owned just by one person. The non-owning partner has often contributed financially to the property in one way or an other. When the couple separate the non-owning partner suddenly finds themselves in a difficult position often being asked to leave with nothing. If the non-owning partner feels that they have made a significant contribution and consequently should have a financial interest in the property they are potentially able to apply to court for a beneficial interest in the property. They must be able to show the court that there was a common intention that the property was to be owned by both parties. This can be shown by evidencing an express discussion, agreement or understanding or it can be inferred or imputed by conduct. This is difficult to show and what we would consider is fair is often not confirmed by the law. Whilst this is not an easy hurdle to jump if you are able to prove you have a share to the court you can obtain a legal financial interest in the property. 

We have children, does that make any difference?

The parent who will have the main care of the child/children also has the possibility to apply to the court for assistance under Schedule 1 of the Children Act 1989. Often both claims will be issued at court at the same time and dealt with together. The court has the ability to make various orders under the Children Act. The court can transfer a property into the non-owning parent’s name until the youngest child reaches 18 or they could also order a lump sum to enable the parent to purchase or rent a suitable home for the child. The most important thing to remember is that these orders are to benefit the child. Unmarried couples have no right for maintenance for themselves and mostly must rely on the CSA for child maintenance.

How much will this cost?

These cases can no longer be funded by Legal Aid however we offer a free 30 minute consultation and during this meeting we are able to discuss different payment options. You must also remember that if you are successful you may be able to claim your costs back from the unsuccessful party.

Who should I contact?

If you would like to discuss this further please contact Lucia Mills on 01179292811 or at lucia.mills@wards.uk.com

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