Cohabitation; do I have a share of the family home?

Divorce is a difficult situation for all involved, but it does provide legal protection for both parties should the unfortunate event of relationship breakdown occur.

There are however major differences between the financial entitlements of those getting divorced and those couples who live together outside marriage. For the latter, there is very little legal help.

For example, the family home, in many cases, is likely to be the most crucial asset that must be divided. In a divorce, the courts have to ensure fairness. For an unmarried couple, the court will apply strict property and trust law with no regard to fairness. The court will only explore evidence of strict intention for the couple to share the value of the home. In many cases such intention can be very difficult to prove.

The property and trust laws for co-habitation are extremely complex and as a result they require guidance from an expert family law solicitor.

Joint property

If you jointly own a property as joint tenants, either of you have the legal right to request that the house is sold and the money split equally between the two of you. On death however, the survivor would automatically inherit the other’s share. You effectively both own the whole of the property.

There is a second type of joint ownership. If the purchase of the family home was made in joint names as tenants in common, then the courts will say that each individual in the relationship has a separate interest in the value – called a “beneficial” interest. In this case, if you made a clear declaration of your interests at the time of the purchase, there should be no argument. However, this is often not the case.

Court’s then try to work out the beneficial interest by looking at a whole range of factors, all of which point to the intention that the co-owners had. For a couple sharing a residential property, the presumption is equal shares but that can be (and is) changed by evidence.

Only one owner

If just one of you owns the property, the situation is even less clear. Here, a trust might arise which gives the “non owning” partner an interest, even though there is nothing in writing. Typically, this might happen where your partner has contributed financially in some way to the property, based on a common intention that he or she would benefit. This contribution could take the form of mortgage repayments, a contribution to the house purchase or through home improvements. This exploration of events is carried out in order for the courts to determine the intention of ownership shares.

In many “one owner” cases, the worst case scenario is that one partner is left having to find alternative accommodation with no legal right to any share in the property – and no right to financial support of any kind from the other. Unmarried couples are not able to claim maintenance as a married couple would be in appropriate circumstances.

From the perspective of the owner, it may be that unfair claims are made.

In all cases, it is best for the couple to have a written agreement setting out their intentions and mutual rights in respect of the property and otherwise. Such agreements can also help with the lack of financial provision on death – or from a pension, that would otherwise be the case.
A couple may change how they view their house or their intentions for ownership may well change. In such an event, further agreements could well be made. In all these situations, your family law solicitor will be able to advise you as to what the best possible course of action may be.

Children

There are separate laws which make possible financial provision for children, which could be provision for housing, lump sums for maintenance or education, or child support where the absent parent is a very high earner – and not dealt with by the Child Maintenance Service. These laws are for the benefit of the children and not the parent.

Throughout a relationship, it is very important that both you and your partner understand your rights and how your intentions will be viewed by the courts should you separate. Paris Smith’s specialist family law solicitors will always be on hand to guide you through this process.

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