Property disputes are emotionally, practically, and financially complex, particularly when they follow a separation. Whether you’re married or unmarried, resolving the dispute quickly and cost-effectively while protecting your interests should be a top priority – and our expert team is here to help.
If you’re navigating a property ownership dispute following a separation, your rights and the legal remedies available will depend on multiple factors, but your status as a married couple or unmarried cohabitees is critical.
Property Ownership Disputes Between Spouses
If you were married or in a civil partnership prior to your separation, a property ownership dispute can be resolved as part of a financial settlement if you plan to divorce or dissolve the partnership.
A financial settlement can be agreed by a divorcing couple (and a ‘consent order’ is issued by the court) or the court can decide how the couple’s assets should be split via a financial order.
In such cases, the court typically starts by assuming each party should receive an equal share of the assets (including properties), but there are various factors which can impact the division of assets. Section 25 of the Matrimonial Causes Act 1973 sets out the factors that will be taken into account when determining a financial settlement.
Separated Spouses Who Aren’t Planning to Divorce
If you’re separated from a spouse or civil partner but have not started formal proceedings to dissolve the union, be aware that they retain the right to initiate legal proceedings at any time. Even if you have been separated for years, an ex-spouse or civil partner may seek to claim a proportion of your assets (including properties) in the future.
In the meantime, a separation agreement can help determine how ex-partners will split their assets while they are separated but not divorced. Although these are not legally binding, courts are likely to take them into account in subsequent divorce or dissolution proceedings, if they are properly drafted, so it is advisable to seek legal advice beforehand.
Property Ownership Disputes Between Cohabitees
Contrary to popular belief, ‘common law marriages’ do not give partners automatic rights over each other’s assets, including properties. Even if couples have lived together for decades, this doesn’t mean that you’re automatically entitled to anything owned by your partner.
Instead, disputes are resolved based on legal ownership, formal agreements made pre-separation and/or financial contributions.
Legal Ownership
If you purchased a property with your ex-partner and both of your names are on the deeds, it’s likely you’re joint owners. However, there is a distinction between types of joint ownership:
1. Joint Tenants
Joint tenants own the entire property equally and, unless it is agreed otherwise, the interest in the property is split 50/50 between you.
2. Tenants in Common
Each party owns a specific share of the property. This may equate to a 50/50 split or one party may own a larger proportion of the property. The division of the property should be recorded in a cohabitation agreement or Declaration of Trust.
Formal Agreements
A cohabitation agreement can be drawn up by unmarried couples to protect their interests in the event of a subsequent separation. These are not legally binding, but if properly prepared, the court is likely to take them into account, so each party should seek legal advice prior to drafting the document. If you do separate, a cohabitation agreement can be used to determine how assets, including properties, are divided, and will help resolve property ownership disputes more efficiently.
Financial Contributions
If you’re not a joint owner and don’t have a cohabitation agreement, you may still be entitled to a share in a property you lived in with an ex-partner. If you contributed to the deposit used to purchase the property and/or mortgage payments, for example, you may have drawn up a Declaration of Trust to protect your interest in the property. This reflects an equitable interest in the property and can be used to resolve subsequent disputes more effectively.
If you have contributed to the property financially but there is no Declaration of Trust in place, you may be able to claim that a beneficial interest – or ‘resulting trust’ – exists. Alternatively, if you’re able to show that you and your partner had an agreement or understanding that you would have a share of the property if it were ever sold, the court may also recognise this.
Non-Financial Contributions
While financial contributions to a property may be easier to document and prove, non-financial contributions may be taken into account in some situations. If you and your partner agreed that you would be responsible for the day-to-day management and maintenance of the property, for example, this may impact the court’s decision regarding your interest in it.
Unmarried Couples with Children
If an unmarried couple with children separates, the individual person’s legal rights remain the same but the welfare of the children remains of paramount importance.
In such cases, it’s likely that parents will seek additional remedies, such as custody orders, to clarify who will care for the children, and where they will live Schedule One of the Children Act 1989 enables a parent to secure financial provision from the child’s other parent, even if they are unmarried. This may include periodic payments or a lump sum order, but it can also include a property transfer order.
If you’ve separated from a partner and you share children together, a property transfer order made in the interests of the child may resolve ongoing property disputes.
Resolving Property Ownership Disputes After Separation
As you can see, resolving property disputes post-separation is complex, particularly for unmarried couples. That’s why you must seek legal advice as soon as possible. By working with an experienced legal team, you can determine what your rights are and what avenues are available to you.
Non-court dispute Resolution (NCDR), such as arbitration and mediation, can be effective ways to resolve post-separation property ownership disputes more quickly and cost-effectively than going to court. However, you’re at risk of underestimating your rights if you fail to seek legal advice.
To find out more or to talk to our team today, contact us now on 01276 680000 or send us a message.