Cohabitation - how does separation differ when you are not married....

The law surrounding separation for cohabitees differs significantly from that of married couples. This is an area of law which requires reform and it is likely that we may see some changes to the law in this area in the future.

Separating couples who are not married are only able to make claims in respect of property and trusts under the Trusts of Land and Appointment of Trustees Act 1996. They will not be able to make any claims in respect of each other’s income or pensions.

However, an application may also be made under Schedule 1 Children Act 1989 for a periodical payments order, lump sum order or a transfer of property for the benefit of a child under 18 years. It is important to note that these types of applications are rare and would only apply where the needs of a child under 18cannot be met by the parent with care. An application for periodical payments can only be made in the event that the other party’s income exceeds the maximum limit which the Child Maintenance Service can impose and a lump sum order would only be made to meet a child’s additional needs, for example, due to a disability. We would suggest that you obtain some advice before pursuing such an application.

Where a couple own a property in their joint names, it is firstly important to establish how that property is held, whether as joint tenants or tenants in common. Unless there is a Deed of Trust in place confirming that the property is held in unequal shares, the usual position would be that each party has a50% legal and beneficial interest in the property.

If one party seeks a sale of the property, they can apply to the County Court for an Order for sale. The court does not have the power to make an Order for a transfer of the property into one party’s sole name, however, an application could include an Order for sale with first option for one party to buy out the other’s interest based on the property’s market value.

In the event that one party holds the property in their sole name, in order to make a claim against this property, an application can be made to the County Court for a declaration that you hold a beneficial interest in that property. The court will require evidence that there was a common intention between you, either express or inferred from conduct, that you would share the property. This could include text messages or making a Will leaving your estates to each other or evidence that you have financially contributed to the property by way of mortgage payments, payment of the initial deposit or contributions made to any renovations to the property. These contributions must be of significant value in order to be acceptable to the court. The court will also require evidence that the claiming party has relied upon this common intention to their detriment.

Further claims which can be made including occupation rent, if one party has been excluded from the property as well as equitable accounting, such as one party being solely responsible for payment of the mortgage.

It s important to note that in civil proceedings, there is a risk on costs as the court can award one party their legal costs if they are successful with their claim against the property. Legal costs can be significant in civil cases and therefore, every attempt should be made to try and negotiate a settlement with the other party either through mediation or in correspondence between Solicitors.

It is advisable to obtain some initial advice regarding any claims you may have in the event of separation from an ex-partner and we offer an hour’s advice, which is followed up in writing, for a fixed fee which ranges between £150 to £220plus VAT, depending upon the fee earner instructed. Please contact our reception team on 0115 9454555 to arrange an appointment with one of our specialist Lawyers.

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