Settling Family Home Disputes When You're Not Married
Common law marriage is a common concept in England and Wales, but unless you’re married or in a civil partnership, there are no laws that apply to unmarried partners who live together. However just because you’re not married, it doesn’t mean you have no rights to your shared property.
In England or Wales, if you’re not married you only have a right to the family home if you’re a co-owner, you have children, or you can establish a beneficial interest in the property. If you do have a stake in the property and you cannot agree what happens to it, the Courts will have to decide on your behalf.
It will be much easier to settle a dispute about the family home if you have a Cohabitation Agreement in place. This is because you will already have decided what happens to the family home, should your relationship break down or you separate.
For initial advice get in touch with our Family Law Solicitors.
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.
Settling a Family Home Dispute
If you do have a legal claim over the family home, then you need to settle your dispute. In these situations there is a lot at stake and everyone involved wants to protect their position.
The first step is to speak to one of our Family Solicitors. It may simply be a case of negotiating with your ex to reach an agreement. You can also try Mediation. A specially trained Mediator will help you both to come to an agreement. If you still can’t agree, the last option is to go to Court and let a Judge decide.
The Court has broad powers to settle property disputes and can:
- Decide whether the freehold title to the property should be transferred
- Pay of a lump sum which would provide a clean break
- Decide if the property should be sold
- Say how any money from the sale should be split
- State who should continue to live in the property, and for how long
- Decide if anyone has a beneficial interest in the property, and how their interest should be honoured
One way of avoiding all of this would be to have a Cohabitation Agreement in place. Your Cohabitation Agreement sets what happens if you and your partner split up. This include what will happen to the family home.
A Cohabitation reduces the chance of a dispute about ownership of the property so you can avoid the stress and cost of legal action if you and your partner separate.
If you are buying a property with your partner and you’re not married, we strongly recommend making a Cohabitation Agreement.
Speak to a Family Law Solicitor
If your relationship has recently ended and you can’t agree what to do with the family home, please contact our Family Law Solicitors. We can explain what your legal rights are, and the options open to you. We can help you settle the dispute and work to protect your interests at all times.
For initial advice call our Family Law & Divorce Solicitors
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