Property After Separation
When partners live together they are known as cohabitants, and the property in which they live is known as the ‘cohabitational home’. Whoever’s name(s) is listed on the legal documents in relation to the house (Title Deeds, Transfer) is the owner of the property. So what happens when the cohabitants separate?
When both parties own the property
When both are owners of the property, they own it as either joint tenants or tenants in common. What does this mean?
Joint tenants is where both parties own all the property on trust for sale for each other. Generally, both parties would be entitled to 50% of the property’s equity (but this can depend on various factors). If one party dies, the other is automatically left with full equity.
Tenants in Common
Alternatively, tenants in common is when they each have their separate share of the property, and this is not always equal! They can deal with their share separately i.e. sell, leave in Will. This is common where one cohabitant has children from a previous relationship.
By owning the property as one of these, upon separation, there should be no argument as to who gets what, since it is set out in the title deeds/transfer. Both parties can apply for the court to order a sale/transfer if the other party is being problematic. Although, it’s rare to create an order against the main carer of children if they wish or need to remain in occupation of the property.
When only one owns the property
If only one party owns the property, the other may still be able to claim that they have entitlement to a share of the equity (profit from sale). To do this, they must be able to provide evidence of one of the following:
- There was an agreement between both parties that it was intended for both to have an equity share. This must have been acted on by the non-owning party with payments towards the mortgage or renovations
- The non-owner has made significant financial contributions towards the purchase/mortgage of the property
- Cohabitants were engaged (ended less than 3 years ago), and the non-owning party has paid for and/or carried out renovations to the property
- The non-owner has been promised a share in the equity and has acted upon the reliance of this fact e.g. given up a secure home
If the non-owning party can prove any of these, but the owner does not agree, they can apply for the court to order they get a share and what the share would be.