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Rights, relating to the shared home, if you break up

Contents

In England and Wales

Breaking up

When unmarried couples split up, neither party has any right to claim maintenance from the other. Maintenance can nevertheless be claimed for the children of the relationship. Major disputes are therefore likely to centre round the ownership or occupation of the home.

Interest in shared home

If the couple purchased as joint tenants, either of them could apply to the court for an order that the home is to be sold and that the proceeds are to be divided equally between them.

If you own your property as joint tenants and your relationship breaks down, one of the first things that you should do is to sever that joint tenancy. You can use a notice of severance of joint tenancy to do this. This converts the joint tenancy into a tenancy in common, which means that you will have a distinct share in the property that will not automatically pass to your former partner/spouse.

If the couple purchases the property as tenants in common and no declaration as to ownership has been made, it will be presumed that both parties have a beneficial interest in the property to the extent of their contribution.

If a property is in the sole legal ownership of one party, the presumption is that, that party also owns all the beneficial interest. In this situation, the other party will have to establish a claim in equity. If a trust is established, the non-legal owner will be entitled to a share in the property, equal to the beneficial interest as determined by the court in accordance with land law principles. A trust can be established if:

  • There is any evidence of an agreement to share the property beneficially and that the party who is not the legal owner, acted to his or her detriment in reliance on the agreement, such as paying for redecoration or household bills
  • The conduct of the parties was such that the court infers a common intention to share the property beneficially.

The existence of a contractual licence

A contractual licence gives the licensee the right to occupy a property in exchange for some consideration. A contractual licence can be established if a party can prove that there was an intention to enter into a legally binding agreement and there has been an offer and an acceptance of that offer. Further, there must be some consideration. Consideration is actual value which the person accepting the offer gives to the person making the offer. The law construes actual value in the widest possible terms and therefore almost everything that gives a person an advantage would be regarded as a consideration. Whether a court would regard consideration to have been given would depend on the particular circumstances of each case.

The doctrine of estoppel

This will give rise to rights of occupation if the following three elements are established:

  • An assurance that the other may live in the property;
  • There has been reliance upon that assurance; and
  • As a result of relying on that assurance, the person has acted to their detriment and suffered a loss or other disadvantage.

Violence

If two people are living together or have lived together and have not been married, the law provides that if there has been violence, the victim of the violence may seek an order from the court evicting the violent partner from the home. This will provide short-term protection.

Children in the home

An unmarried parent could apply on behalf of a child to the court for financial orders from the other parent. The court could make an order transferring property of the one parent to the child to provide a home and maintenance for the child. The non-owning partner looking after the child will be able to occupy the property.

In Scotland

Breaking up

When unmarried couples split up, there is limited provision for them to make a claim against each other for financial provision. Financial provision can also be claimed for any children of the relationship. As the property is often the main asset in a relationship, however, major disputes often centre round the ownership or occupation of the home.

Interest in shared home

If the couple purchased as joint owners, either of them could apply to the court for an order that the home is to be sold and that the proceeds are to be divided equally between them.

If you own your property jointly with your partner and there is a survivorship destination in the title and your relationship breaks down, you should have the survivorship destination evacuated. You can use an evacuation of survivorship deed to do this, which both parties have to sign. This agreement should then be registered in the relevant property register. This converts the ownership into outright shares in the property, which means that your distinct share in the property will not automatically pass to your former partner/spouse.

If the couple purchased the property as joint owners but there is no survivorship destination, it will be presumed that both parties have an equal interest in the property. If unequal contributions are made to the purchase price, it is useful to have the title shared to reflect the unequal contributions.

If a property is in the sole legal ownership of one party, and there is no written agreement to the contrary, that party is presumed to be the outright owner of the property, who can deal with the property more or less as he or she wishes.

If, however, the party who is not the legal owner contributed financially to the property (for example paying for its redecoration), they could have a claim of unjust enrichment against the property owner, should the relationship breakdown.

Violence

If two people are living together or have lived together and have not been married, the law provides that if there has been violence, the victim of the violence may seek an order from the court evicting the violent partner from the home. This will provide short-term protection.

Children in the home

An unmarried parent could apply on behalf of a child to the court for financial orders from the other parent. The court could make an order transferring property of the one parent to the child to provide a home and maintenance for the child. The non-owning partner looking after the child will be able to occupy the property.