Settling Family Home Disputes When You're Not Married

Family Home Disputes Following Separation

If your relationship has broken down, you and your ex-partner may now be arguing over the family home. You might be struggling to deal with questions like:

• Who should stay living in the property?
• Should the house be put up for sale?
• How should the money from any sale be divided?

Unfortunately, there are no straightforward answers to these questions.

To start with, you need to establish what your legal rights are. This depends on whether you own the family home together, or whether it’s in a sole name. We explain both these situations below.

You Own the Family Home Together

If you and your ex-partner bought your home together, then you each have a legal right over the property. Couples often buy a home as Joint Tenants. If so, you each own 50% of the property. As a Joint Tenant you will have a Right of Survivorship. This means if one of you dies, the other will automatically receive their share of the property and become the sole owner of the property.

If you bought the property as Tenants in Common, then you and your partner can own an unequal share of the property and this will decide how the money from the sale of the property are shared between you.

The Right of Survivorship doesn’t apply to Tenants in Common.

As a co-owner, you are entitled to a say over what happens to the property. You’ll know you’re a co-owner because your name will be on the mortgage deeds and/or the Land Registry Title Deeds.

Alternatively, there may be a Declaration of Trust in place, which states your beneficial interest in the property. This is usually used by Tenants in Common to set out what share of the property each owner holds.

You Don’t Own the Family Home Together

Alternatively, the property may be held in one person’s sole name. Typically, this happens when one person owned a property before the relationship started. The other person later moves in, turning it into the family home. Under these circumstances, the legal owner of the property holds all the rights, while the other person has none.

This may be a shock, but the fact is that if you’re not married and you’re not a co-owner of the home you live in, you don’t automatically have any legal rights over the family home – even if you’ve lived there for many years. This is because in England and Wales, there is no such thing as a common law marriage.

There are some exceptions to this rule. This includes if:

• You have children together
• You can establish a beneficial interest

You Have Children Together

If you and your ex-partner have children together, the situation is very different. This is because the Courts will always prioritise the needs of any children above anything else.

The Courts will often rule that when a relationship breaks down, the person who mainly looks after the children should live in the property with them even if they’re not the legal owner of the home.

Establish a Beneficial Interest

Alternatively, you could try to establish a ‘beneficial interest’ in the property. If there’s an express Declaration of Trust in place this can be used to declare beneficial interests.

You can also establish your beneficial interest by showing that the owner of the property encouraged you to believe that you would have some right or benefit over the property. For example, if you contributed to paying the mortgage or paid for improvements or maintenance on the property. Being in a position to show this could improve your claim to the property following your separation.