The family home is more than just a property. There are countless memories attached, and it’s possible that you have other attachments to its location. Perhaps the children’s school or your work, not to mention the immeasurable love and time invested in making it a home, holds unquantifiable value.
One of the first things you should aim to do is ensure you maintain payments on your property. A plan should be in place to ensure payments are met. If you are struggling financially, then you should get in touch with your mortgage provider, landlord, insurance company, and any relevant parties.
The next step is to get independent legal advice so you can follow the right processes before negotiations begin. Full transparency is advised from the outset regarding finances and assets. Before the negotiations begin, you might have gone through any of the above processes such as Mediation or Arbitration, (See above on Financial Disputes and agreements). This is vital because you cannot realistically negotiate on what’s fair and just if you don’t know what’s in the pot or how much. Once you know this and you’ve come to an agreement as to the type of settlement you and your ex-partner wants, then negations as to a final settlement can be reached.
Where the dispute is particularly problematic, then the Courts will be involved.
The Former Matrimonial Home Disputes in the Courts
Each case will be taken on its own merits, although there is legal precedence in England and Wales governing such matters. The Courts will look at all the circumstances. For example, a couple with a short marriage of say 3 years and no children, will have an easier and quicker property settlement. The property will be sold and proceeds shared 50/50.
It is however, a different set of circumstances and outcome for the couple married for many years, who have children, pension, possibly business assets, and shares. The court could order sale of property and proceeds, plus pension, business shares and assets to be split and shared.
In complex cases where assets other than the family home cannot be accessed and the children are still dependent, the court can order it to be awarded in full to one party. This is usually the main care-giver, most likely, but not always, the mother. The Court’s powers in such matters are far reaching, and can make such a ruling if it sees fit to ensure the children have a home. At a later date when children are independent, the family home will be sold and proceeds will then be divided.
Cohabitee Property Disputes
Cohabitee property rights are not the same as those of married couples or civil partnerships in U.K law. The cohabitee cannot claim rights based on length of relationship, no matter how long they’ve been together.
How the Courts view Cohabitee Property Rights
The Courts will look at what was agreed between the parties when you first purchased the property. In the absence of clear written evidence such as a Trust Deed or a Cohabitation Agreement, the Courts will try to put together pieces of the puzzle, on the basis of an agreement of the parties’ actions over the years.
The complex cases of the Courts in recent years, have had to look at financial contribution to ascertain who has beneficial and equity interests in the property. What will be in your favour of course is if you share in the mortgage payments, paid the deposit for house purchase, and made financial contributions in any renovations. All this plus other matters on mutual intention will be taken into consideration when deciding what portion of equity each partner should have.
In the absence of a clear intention forged in a document, it is difficult to claim your property rights. The case of Dobson v Griffey (2018) might make it difficult for cohabitees in securing their property rights. Dobson v Griffey has ruled, that a contribution to a property that is manual work isn’t enough to acquire an interest in the property. The ruling in this case makes it extremely difficult for cohabitees who have made an invaluable (non-financial) contribution to the home due to their commitment to the relationship, as opposed to a (mutual) intention to gain property interest. Without clear intention for financial gain, manual work or the work you put in in everyday care of your home, it seems will not suffice. A financial contribution with clear evidence is more favorable to the courts.
But don’t despair! There are ways to protect your property rights.
Cohabitees Making a Secure Investment
As an unmarried cohabitee couple, you can ensure that your property rights are protected in law. When you purchase a property together with your partner, you can have a Trust Deed drawn up by a conveyancing solicitor. It is wise to get this done before completion sale of the property.
How Does a Trust Deed Work?
A Trust Deed will confirm your intentions as to how you will own and share responsibility in the property. The document will lay out the following:
- Who pays the mortgage?
- Who pays deposit?
- How ownership and equity in the property will be divided and shared?
- Who earns more or less; who will contribute what portion of their salary towards mortgage payments?
- Will the person paying more mortgage acquire more in equity?
- Will the other person paying less mortgage contribute in other ways, such as homemaking, daily maintenance, and upkeep, as well as home improvements, whether manual or financial?
It is good to note that even after owning a property for some time, you can still prepare a Trust Deed. Naturally, this cannot be done once the relationship has completely broken down and parties are in a dispute over its interests and equity.