In England & Wales, there is no such thing as a “common law husband” or a “common law wife”. No matter how long you have been living with a partner, if you are not married, then in the eyes of the law you are cohabitees. This is the case even if you have children together.
A cohabitee’s rights upon separation are very different to that of an ex-spouse, and so is the process of dealing with the division of property and money.
When cohabitees separate, they do not automatically have a claim against each other’s property and capital. However, in cohabitee disputes, “equity follows the law”, and that means that if property is held in joint names there is a presumption that it is owned equally and divided equally, unless one of the parties can show that this should not be the case i.e. there is a Declaration of Trust confirming that the property is held as tenants in common in unequal shares, for example. If the property is held in one party’s name, but the other party disputes this, then they would need to provide evidence to rebut the above presumption. It may be necessary for that party to consider whether they could establish an interest by looking at the law of Trusts.
If parties can reach an agreement in relation to how the property should be dealt with, that should be recorded in a document called a Deed of Separation, which would outline the agreement reached between them. Whilst this is not a legally enforceable document it would show the parties’ intentions should an application be made to the Court at a future date.
If matters cannot be agreed between the parties, an application can be made to the Court under the Trust of Land & Appointment of Trustees Act. An application under this Act is very technical and you have to show compliance with the Pre-Action Protocol relating to such Applications and also give consideration to or attended at Alternative Dispute Resolution with each other, in order to try and settle matters between you. This is very important and there can be costs consequences, if matters are not approached in the correct way.
The Court’s power under the Trusts of Land and Appointment of Trustees Act, include making a declaration as to how the parties hold a property or making an order for sale. However, embarking on legal proceedings can be risky and costly, particularly as it is the case in cohabitee matters, that the unsuccessful party pays the successful party’s costs.
If you are unsure how you legally hold your property and you would like to get some advice, please contact us on 029 2034 2233 or email enquiries@wendyhopkins.co.uk
Published 11/09/19