Claim For Possession Of Property

When a couple separates, whether married or not, one of the most contentious issues often relates to a claim for possession of property. Most couples live together during the course of their relationships, so when their relationships end, our clients are often keen to understand whether they have a claim for possession of the property or a right to continue living there.

The answer depends largely on whether the property is legally owned by the couple jointly or by just one partner, and whether the couple are married or civil partners, or unmarried and living together as ‘cohabitees’.

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Claim For Possession Of Property When A Couple Is Married, And Both Own The Property

When a couple is married or in a civil partnership, and both own the property, it will not be looked at in isolation, but will form part of the parcel of assets that fall to be divided during the divorce or dissolution process. If the parties cannot agree on the division of their assets, the Court will decide for them, based on what the Judge considers would be fair and reasonable in the circumstances. If the couple has children, their welfare will be the Court’s primary concern, and the terms of the Order will be made with their best interests in mind.

As joint legal owners, both partners have the right to remain in the property until the financial aspects of their separation have been finalised, whether through agreement or Court Order.

Claim For Possession Of Property When A Couple Is Married, And One Partner Owns The Property

Sometimes, the marital home is owned by just one partner. Nevertheless, the property will still form part of the couple’s assets to be divided between them when their relationship ends.

Further, the non-owning spouse or civil partner enjoys ‘home rights’ under the Matrimonial Homes legislation, which allow them to continue living in the property until the divorce or dissolution is finalised. To ensure they receive the full benefit of their home rights, the non-owning partner must register them against the title of the property at the Land Registry. This means that the owning partner cannot sell the property without their knowledge or permission.

Claim For Possession Of Property When A Couple Is Not Married, And Own The Property Jointly

When a property is jointly owned, the couple must decide what to do with it when their relationship ends. They might choose to sell the property and split the proceeds of sale, keep the property and rent it out, or one partner might buy the other out.

Claim For Possession Of Property When A Couple Is Not Married, And One Partner Owns The Property

The position of unmarried couples when one owns the house is often the thorniest of all the situations we discuss here. Contrary to popular opinion, the law does not recognise a ‘common law marriage’ and unmarried couples living together do so as mere cohabitees, regardless of the length of their relationship and whether or not they have children.

The overarching principle is that a cohabitee has no rights over the property when their relationship with its owner ends. They are not automatically entitled to remain living there or claim a share in it, unlike their married counterparts or those in a civil partnership. This can be highly stressful for non-owning partners, particularly those who consider the property their home, have lived there for a considerable time and may have contributed to its upkeep.

A statute known as TOLATA – The Trusts of Land and Appointment of Trustees Act 1996 – can sometimes come to the aid of non-owning partners. TOLATA can, in some circumstances, allow those with a beneficial interest in the property to make a claim over it. If successful in their TOLATA claim, the non-owning partner might be awarded various forms of relief by the Court. They might be permitted to remain in the property, awarded a share in it or granted a lump sum in recognition of their beneficial interest.

TOLATA claims are far from straightforward, particularly when there is no specific agreement between the parties as to how the property should be owned, which is often the case with unmarried couples. The Claimant (the non-owning partner) must convince the Court that, despite the lack of explicit agreement, the couple had intended to own the property jointly. This requires persuasive evidence, such as the Claimant having paid for an extension to the property. Each TOLATA claim turns on its own facts, and evidence that might convince a Judge in one case, might not do so in another.

How Our Family Law Solicitors Can Help

Our expert family law solicitors regularly assist clients with all aspects of family law and practice. If you are going through a divorce or civil dissolution, they will guide you through the relevant procedures and ensure you receive the best possible settlement. If you are cohabiting, they will advise on the measures you could take to protect your interests should your relationship end, such as a Cohabitation Agreement. If you are the non-owning property partner in an unmarried couple and your relationship has ended, our family law solicitors will advise you on the merits of your position and the possibility of making a TOLATA claim. In all cases, our family law solicitors’ advice is concise, comprehensive and delivered with compassion and empathy.