At Lovell Chohan solicitors, we have Law Society accredited Children and Adult Panel Members, Advance Family Law and specialist Resolution accredited solicitors. In this modern age more and more couples are choosing to live together as opposed to getting married.
The law relating to the division of a home or other assets belonging to cohabiting couples is complex and is entirely different to that of married couples. Most issues over disputes involving property between cohabiting couples are covered under the Trusts of Land and Appointment of Trustees Act 1996. Please see section on Trusts of Land.
There is no such thing as Common Law marriage
There is no such thing as a ‘common law marriage’. In England and Wales common law marriages were abolished over 250 years ago although the general usage of the term continues.
Cohabitees cannot claim maintenance against their former partners although claims for maintenance for any children can be made.
In most cases the most valuable asset is the couple’s property. A lot depends on whether the property is in one party’s name or in joint names. If the property is in joint names the usual end result is that it will be divided equally, but having said this if one party claims a larger share than the other, an application can be made under the trusts of land and appointments of trustees act 1996. In the majority of cases the ownership of the property or the extent of ownership will depend on any agreements made at the time the property was purchased. These could be land registry documents or other documents and if this is the case then the division as a percentage as specified in any such documents is conclusive. If for example a property is bought in the cohabitants joint names where shares are specified as tenants in common, then it is conclusive that they hold that property on the percentage share as specified. Cohabitants are able to prevent any future arguments by specifying in advance the loans what share of the home and what will happen about the home if the relationship ends, whether by separation or death. This is usually done by way of a trust deed which clearly states the proportion in which the couple own the property, whether equally or in unequal shares. Such a trust deed can also cover matters such as:
- Granting an option for one party to buy out the other’s share;
- Setting out the circumstances in which each party could insist on a sale or, alternatively, delay a sale;
- Agreements as to how the cost of repayments for the mortgage, repairs, insurance payments and utility costs are to be met and divided;
- Provisions by the Cohabitants as to assignment of their shares in the home to somebody else
Constructive Trusts and Resulting Trusts
It is sometimes, and often the case that the respective parties share in the property is not clear. In such cases the principles of trust law is utilized to establish each party’s share. There are two types of trust, the first being a constructive trust, this is where a common intention as to how the property would be shared can be shown and this can be in one of two ways either where the parties specifically agreed this between them because a common intention can be inferred from the way in which the parties acted and that one party relied on a common intention to their own detriment. The second is what is known as a resulting trust and this does not require a common intention between the parties. This usually arises where one party contributes towards the purchase of a property and depending on the amount contributed it can be presumed that the contributor acquired a share in the said property.
If an application is made to the court, the court must have regard to the following matters:
- A common intention to share or the intentions of the parties
- Whether there was a promise of a permanent home
- The purpose for which the property was purchased by the parties
- The welfare of any child or children who occupy or might reasonably be expected to occupy the property
- The interests of any mortgage company
- The interests of any other parties
- The court will also look at the needs and resources of both Cohabitants and the children and any special needs of the children.