29 Nov 2023
As was touched upon by my colleague Benjamin Parker in his article titled “The Law needs to give protection to married and unmarried couples”, there is no such thing as a “common law” marriage and the sad reality is that a separating cohabitee will find themselves in a more precarious position than a separating spouse or civil partner.
If you are living in jointly owned property, then you are entitled to reside in that property and you can only be excluded from the property if the Court makes an Occupation Order under the Family Law Act 1996. Under the Family Law Act 1996 the Court can make an Order excluding an owner from a property, or regulating the use of the property so that each owner can access prescribed parts of the property at set times. The latter can be useful where the relationship has become acrimonious but neither party has anywhere else to go, and the property is of sufficient size to be effectively partitioned into two properties. Such an Order would provide for each party to have separate ‘bedrooms’ and then either to have separate bathrooms and kitchens if the size of the property allows, or to regulate the times during which each party may have access to these shared rooms. Obviously, this should only be a temporary solution until the property is sold or one of you buys the other out. With jointly owned property, neither of you can sell the property without the co-operation of the other, or a Court Order (if the other party will not cooperate). The relevant legislation is the Trusts of Land and Appointment of Trustees Act 1996 whereby the Court can make an Order for sale of a property and if necessary, determine how much each party is to receive from the net sale proceeds.
If you are residing in a property which is owned in the sole name of your partner, you do not have a legal right to occupy that property in the absence of a Court Order. However, you would be entitled to apply for an Occupation Order under the Family Law Act 1996 which could then grant you the right to occupy the property for a specified period. If you want to assert that you have a financial interest in the property even though you are not on the legal title, then you could do this by making an application under the Trusts of Land and Appointment of Trustees Act 1996. You may argue that you have made a direct financial contribution to the purchase of the property, paid for substantial works on the property or a family member contributed financially to works intended to benefit you. This is a legal concept known as a “Resulting Trust”. You may argue that there was a common intention shared by you both that you would have a financial interest in the property and that you then acted to your detriment in reliance upon that intention, for example by contributing towards the mortgage or other expenses. This is known as a “Constructive” or “Common Intention” Trust. Alternatively, but quite similarly, it could be that you were promised that you would acquire an interest at some point, and in reliance upon that promise you acted to your detriment, for example by contributing towards the mortgage or other expenses. This could give rise to a claim of “Proprietary Estoppel”. All of the above are extremely fact-specific and if you feel that any of these issues may be relevant in your circumstances, I recommend you speak with one of our expert legal team.
If you and your partner have children together and are separating, then you may wish to consider the possibility of making an application under Schedule 1 of the Children Act 1989 for Financial Provision. Under Schedule 1 of the Children Act 1989 a parent can apply for financial orders for the benefit of the child. The Orders the Court can make are as follows:
It is important to note that the Court will not make an order for periodical payments unless the paying parent is outside of the jurisdiction of the Child Maintenance Service (usually on geographical grounds) or their income exceeds the limit of a Child Maintenance Service Assessment (£3,000 gross per week). If the Court does make a Periodical Payments Order, it can be secured against a property to ensure payment.
The expenses which the Court may consider appropriate for a Lump Sum Order are one-off expenses for the benefit of the child, although they can also benefit the parent, for example the cost of furnishing a home or the provision of a motor vehicle. They could also be for the provision of a specific item needed by the child such as a pushchair for a baby, or a laptop for a child at school. If the Court was to award such a lump sum, then it would be paid to the Applicant parent for them to purchase the items, which would then be retained by the Applicant parent.
Under Schedule 1 of the Children Act 1989 the Court does have the power to transfer Real Property belonging to one parent to the other parent, or to order a parent to put a property into trust for the benefit of the children, however it is important to note that any such property would revert back to the original owner-parent upon the child completing full time education. If you require advice about the possibility of applying to the Court for Financial Provision under Schedule 1 of the Children Act 1989 I would recommend you make an appointment to see one of our expert legal team.