If you are looking to find out what claims do unmarried couples have on separation, then please read this article below:
Claims under Trusts of Land and Appointment of Trustees Act 1996
The law that applies to cohabitants is different to the law that applies if you are married. The applicable law is that of the Trusts of Land and Appointment of Trustees Act 1996. The law on cohabitants is complicated and the Judge has a wide discretion.
Legal owner and beneficial owner
The legal owner of a property is the person(s) registered at the Land Registry as the proprietor. The beneficial owner of a property is the person(s) entitled to the benefit of the land. There is a presumption that the beneficial interest follows the legal title but this can be rebutted.
There are two ways in which property can be jointly owned – as Joint Tenants or Tenants in Common.
If you hold the property as Joint Tenants this means that you each have equal rights to the whole property. If one of you were to die then the property automatically passes to the other under what is called the right of survivorship. This would be the case irrespective of any contrary provision within a Will or under the rules of intestacy.
If you hold the property as Tenants in Common the beneficial ownership is in shares and these shares can be equal or unequal. The property does not automatically go to the other owner if one party dies. You can each pass your share of the property in your Will. If you do not have a Will then the property will pass under the rules of intestacy.
Where the property is registered in joint names and held as Joint Tenants the starting point is 50/50 unless any subsequent intention changes this.
Where the property is registered in joint names and held as Tenants in Common the starting point is what is stated in the Transfer Deed or Declaration of Trust unless any subsequent intention changes this.
Where the property is registered in one party’s sole name the starting point is that legal owner owns the beneficial interest. There are 4 ways in which the other party can claim an interest:
- Express Declaration of Trust.
- Resulting trust – where there is contribution in money or monies worth to the purchase price of the property or mortgage, improvements and a common intention to hold the beneficial interest in the property in proportion to contributions.
- Constructive trust – where there is a common intention that you should have a beneficial interest in the property and that you have acted to your detriment on this basis – the Court can infer common intention e.g. you gave up your career to look after children.
- Proprietary estoppel – the legal owner has led you to believe you have a beneficial interest in the property and as a consequence you have acted to your detriment, making it unreasonable for the legal owner to insist they have total beneficial ownership of the property.
What factors will a Judge consider?
The Court will consider the following when deciding the claim:
- The intentions of the parties.
- The purposes for which the property is held e.g. a home for both parties.
- The welfare of any minor who occupies or might reasonably be expected to occupy the property.
- The interests of any secured creditor or any beneficiary e.g. mortgage company.
Save for limited exceptions, a party has to follow a Pre-Action Protocol before issuing Court proceedings under the Trusts of Land and Appointment of Trustees Act 1996. A Pre-Action Protocol sets out the steps the Court would normally expect parties to take before commencing Court proceedings.
Claims under Schedule 1 of the Children Act 1989
If an unmarried parent has care of a child they could also make a claim under Schedule 1 of the Children Act 1989 for a financial contribution. For a Schedule 1 Order to be made there must be a connection between the child and the Respondent. This connection must either be biological or by reference to the Respondent’s married or civil partner status.
The Court can make a Periodical Payments Order. Usually, this is only made in circumstances that fall outside the jurisdiction of the Statutory Child Support Scheme e.g. by reason of a child’s age, an application for educational expenses, an application for expenses connected with the disability of a child.
The Court can make Capital Orders. The Court can make a Lump Sum Order or an Order in relation to property (including Orders for the transfer or settlement of property to either the Applicant for the benefit of the child or to the child themselves).
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Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.