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SEPARATING COHABITEES – WHAT ARE YOUR RIGHTS ?
by Victoria Syvret , Family Law Partner at Aaron & Partners LLP
For many of us in our day-to-day lives , we do not see the difference between living as a married or unmarried couple . However , the law treats cohabiting couples who have separated very differently if they are unmarried , particularly in relation to property .
What types of ownership are there ? The first question which needs to be answered , is who legally owns a property ? A property can be owned by Joint Tenants , Tenants in common , or in a sole name .
Joint Tenants Joint Tenants own the property in equal shares . This is the case even if one party has contributed more to the deposit , renovation work or the mortgage repayments . If either party were to die , their share of the property would automatically pass to the other .
Tenants in common Tenants in Common can own the property in equal or unequal shares . This is usually used where one party has contributed more to the property or they wish their share of the property to pass according to their Will . It is best practice to record any contributions made to a property , where there are unequal shares , in a Declaration of Trust . If there is no Declaration of Trust , it is presumed that the property is owned in equal shares .
What can I do if I believe the ownership is different to the title deeds ? As a starting point , the law presumes that the owner on the title of the property is both the legal and beneficial owner . It is then for the individual arguing that the title deeds do not reflect the actual ownership , to prove otherwise .
This can be the case where the parties own the property in joint names or if the property is owned in the sole name of only one of the parties .
Cohabitees can make an application under the Trust of Land and Appointment of Trustees Act 1996 ( TOLATA ). The aim is to prove that the beneficial ownership of the property is different to the legal ownership . A beneficial ownership allows an individual to live in the property and have a share of the proceeds of sale .
The court will consider the intentions of the parties at the date the property was purchased , the discussions the parties had before , during and after the purchase and any financial contributions which have been made by either party .
This is a particularly complex area of the law and you should seek legal advice if you have recently separated from your partner where either of you own a property .
For further information , please contact :
Victoria Syvret Family Law Partner 01244 405 529 Victoria . syvret @ aaronandpartners . com
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