What Is The Legal Position When One Partner Owns The House?
The law refers to the property in which spouses or civil partners and their families live as the ‘matrimonial home’. Nowadays, the matrimonial home is often legally owned jointly by the couple as either Joint Tenants or Tenants in Common. Joint Tenants each own the whole property and have equal rights over it, whereas Tenants in Common own specified shares. Sometimes, the matrimonial home is owned solely by one partner. Common reasons for this include to simplify Estate Planning or due to the non-owning partner having a bad credit rating. The legal position when one partner owns the house varies depending on whether the couple has entered into a legal union, namely a marriage or civil partnership.
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What Is The Legal Position When One Partner Owns The House, And The Couple Are Married Or In A Civil Partnership?
The law explicitly recognises situations in which just one partner owns the matrimonial home and seeks to provide some degree of protection for the non-owning partner. The matrimonial homes legislation confers on non-owning partners certain rights over the property, known as ‘home rights’. When a relationship breaks down, home rights enable the non-owning partner to remain in the matrimonial home pending the resolution of their divorce or dissolution.
Ownership of the matrimonial home will form a key part of the divorce financial settlement and will depend entirely on the couple’s circumstances. Couples are encouraged to resolve the issue between themselves through open discussions or alternative dispute resolution methods such as mediation. If no amicable agreement can be reached, the parties must ask the Court to decide what should happen to the property. The Court has a wide discretion and will take consider all pertinent factors when making its decision, most notably the welfare of any children. Examples of the types of Orders commonly made include that the property be sold, and the proceeds of sale shared or that one party remain in the property and buy the other’s share.
Home rights arise automatically, but you should ensure they are properly registered with the Land Registry to obtain their full protection. Once registered, home rights prevent the owning partner from selling or mortgaging the property without your consent.
What Is The Legal Position When One Partner Owns The House, And The Couple Are Not Married Or In A Civil Partnership?
Unmarried couples living together are treated very differently from those who are married or in a civil partnership. Despite an increasing number of couples deciding against a legal union, the concept of a ‘common law marriage’ is not recognised under English law. Unmarried couples do not enjoy next of kin rights, have no entitlement to each other’s Estates under probate law, and, in the context of living arrangements, are treated as mere ‘cohabitees’.
As a result, if you are unmarried and do not own the house you share with your partner, you may find yourself in the unenviable position of having no rights over it if your relationship ends. This disparity in the law is addressed, to some extent, by a relatively unknown statute called the Trusts of Land and Appointment of Trustees Act, more usually referred to as ‘TOLATA’.
TOLATA claims can be brought by anyone asserting a beneficial ownership over a property but feature most often in cases involving unmarried couples. The Court’s jurisdiction under TOLATA is subjective as opposed to discretionary, meaning that cases are decided based on what the Judge believes the parties intended, not what they consider fair. If the Judge accepts, on the balance of probabilities, that the couple intended for the property to be owned by them jointly, they can make a variety of Orders, including that the non-owning partner be entitled to live in the property or be paid a lump sum to reflect their financial interest in it.
How We Can Help When One Partner Owns The House
Our family law solicitors have extensive experience in all aspects of family law. We will take the time to get to know you, your circumstances and your priorities, and give concise, straightforward advice targeted at achieving your goals. If your partner owns the house, you have various options to protect your position. These include registering your home rights and entering into a Cohabitation Agreement with your partner to document your joint intentions regarding ownership of your home and other crucial issues should your relationship break down. If your relationship has already ended and you wish to understand the extent of your rights over the home you shared, our family solicitors are ideally placed to review your circumstances, advise on the best course of action and take all steps necessary to protect your position.
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