‘Who gets the house if we separate’ is a very good question but the answer to who gets the house if we separate all depends on the following:
- Are you married or in a civil partnership? If you are in a legally recognised relationship the Court can make orders over the house to meet both parties and any children’s needs. If you aren’t married or in a civil partnership the Court has to apply strict property law to decide on the question ‘’who gets the house if we separate’’ ;
- If you are a cohabiting couple then who legally owns the property and therefore whose name is on the title deeds? Even if the property is owned in one partner’s sole name property claims can still be made if legal requirements are met;
- If you are a cohabiting couple and you jointly own a property do you own it as joint tenants or tenants in common? The type of joint ownership can affect the property claim;
- If you are a cohabiting couple what was your intention when you bought the house and who has paid for the house and mortgage;
- If you are a cohabiting couple do you have any dependent children? If so the Court can order that a home needs to be provided for the children while they are growing up;
- Is there a cohabitation agreement or declaration of trust in place?
Who does get the house if a cohabiting couple separate?
This question was yet again being decided by the family Court this week. Why? Ms Ladwa was in a relationship with Ms Chapman for 16 years. In the early part of their relationship Ms Chapman bought a house for 1.4 million and a year later she transferred the property into joint names with Ms Ladwa.
Roll on 16 years and on the couple’s separation Ms Ladwa claimed half the house and Ms Chapman opposed her property claim as she maintained that she’d only transferred the house into joint names as a result of Ms Ladwa’s undue influence . Ms Chapman thought she’d been used as a ‘’cash cow’’ by Ms Ladwa during their long relationship.
What wasn’t disputed was the fact that Ms Chapman had made the greater financial contribution to the house whilst Ms Ladwa hadn’t been able to use her law degree to get a job. The judge described Ms Ladwa’s role as akin to a housewife in a traditional divorce.
The Court concluded Ms Ladwa was entitled to half the house. Why when it was Ms Chapman that had bought and paid for the house?
- The Court thought there was no undue influence at play when Ms Chapman transferred the house into joint names;
- There was no cohabitation agreement or declaration of trust setting out in an official document who would get what share of the house on separation;
- The house had been bought with money from a joint bank account, even if Ms Chapman had contributed most of the money in the bank account;
- The house had been bought as a family home and it was the couple’s common intention to use it as a family home;
So Ms Ladwa has ended up with half the house and Ms Chapman no doubt rues the fact that she didn’t sign a cohabitation agreement with her partner.
Who should sign a cohabitation agreement?
If you own property or you are thinking about buying a family home then you need legal advice from a family solicitor on whether you should sign a cohabitation agreement. If you don’t have a cohabitation agreement in place you could be making a very expensive mistake as Ms Chapman found out to her cost. It is one of those family situations where it pays to take specialist legal advice from a family solicitor to protect yourself and your family.
For advice and information on cohabitation claims and cohabitation agreements please call me on +44 (0) 1477 464020 or contact me by email at [email protected]. Family solicitor appointments are available in Holmes Chapel Cheshire and Prestwich Manchester.