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Rights to Property after Separation

27th April 2017

For initial legal advice call our Family Law & Divorce Solicitors on 03306069626 or contact us online and we will call you.

When you separate from your partner, you’ll need to decide who gets what – including your home. This can be difficult to agree on, as one person may argue that they should stay in the property with the kids, while the other may argue that they’ve contributed more money.

But for some this decision won’t be up for debate, because if you’re not married, there’s a chance you don’t actually have any legal rights over the property. This is because the laws for married couples are very different to the laws for unmarried couples.

No Such Thing as Common Law Marriage

There’s a popular myth that when you live with your partner for a long time, you’re in a ‘common law marriage’. But the truth is that in England & Wales there’s no such thing as a common law marriage. Whether you’ve been living together for 1 year, 10 years or even 50 years, if you’re not married, you have no automatic legal right over your partner’s assets.

Lots of people are in this position, as more and more of us are choosing to live together without getting married. Often someone will move into a property that their partner already owns, or can’t afford to contribute when their partner buys a new house. But what many don’t realise is that should anything go wrong in the relationship, they could find themselves without anywhere to live.

Take for example Tom and Amy, a professional couple in their early 30s. Tom bought his flat with the help of his parents. His girlfriend Amy moved in with him, but after three years things didn’t work out. In this instance, Tom owns the property so he gets to keep it. They weren’t married, so Amy has no right to claim a share of the property.

Or take a different couple, Jack and Abi. Jack contributes a small sum to the deposit, while Abi covers the rest. The mortgage is in her name, but Jack pays the bills. Each person has an interest in the property, but Jack’s won’t necessarily be recorded in any official paperwork. Should they break up, Abi would have a greater right to the house, meaning Jack would be left without a home.

If you’re in this position you could always argue that you have an interest in the property, because although it belongs to your ex, you’ve contributed financially over the years, perhaps paying towards the bills and mortgage repayments. But this can be difficult to prove, and it can also be very costly to pursue this argument in Court.

Cohabitation Agreements

So for many people the bottom-line is that if you’re not married and your name isn’t on any official paperwork, it’s very likely your ex will keep the house. Getting married would give you more legal rights, but then, marriage isn’t for everyone.

To protect your financial assets for the future, you can put a Cohabitation Agreement in place. This is a legal document which details what should happen if the relationship does break down. You can set out who (if anyone) gets to keep the house, what do to with the contents of the property, and how any savings should be split if you separate.

If You are Married or Have Kids

It’s important to note that things are slightly different if you’re married or if you’ve have a child/children together.

When you’re married you’re automatically entitled to a share of your partner’s assets. This means you have a legal right over the property, even if you’re not the legal owner. If you want to protect assets that you bring into the marriage, you should consider getting a Prenuptial Agreement.

If you have a child/children, the person considered to be the ‘primary care-giver’ normally gets to keep the family home. This basically means the person who looks after the children for the majority of the week. For more information see Divorce with Kids, Who Gets the House?

If you’re going through a divorce or separation and are in dispute as to what should happen to the family home, our Family Law Solicitors can help you. Or if you’d like to prevent any difficulties in the future by making a Cohabitation Agreement or Prenuptial Agreement, we can draft the document for you.

For initial legal advice call our Family Law & Divorce Solicitors on 03306069626 or contact us online and we will call you.

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