Property Matters Upon Separation
Sole Ownership Cases
Unless the non-owning party can prove an interest, the property will belong to the legal owner however long the relationship has lasted and regardless of whether there are children of the relationship.
The non-owning party (called ‘the Claimant’) must show that they had an agreement with the other party (called ‘the Defendant’) for the Claimant to have a share even though the legal title belonged to the Defendant. The Claimant must also show that he or she relied on the agreement. This might be by spending money to help with the purchase or improvement of the property or through physical labour or both.
If the Claimant succeeds, the court can amend the deeds, order a sale and divide the proceeds.
Where the parties were engaged to be married, the Claimant does not have to prove an agreement and only has to show that he or she contributed in money or money’s worth to purchase or improve the property.
Other remedies are available where for example one party has been pressurised or tricked by the other, made a mistake about the legal position or where inadequate advice was given to the parties at the time of purchase of a property.
Urgent Steps in Sole Ownership Cases
Preserve evidence - Consider what evidence there might be to help us to present your case (notes, cards, letters, e-mails, agreements etc).
A non-owner must also show that he/she relied on the agreement to personal detriment. Consider what evidence there is to show this (bank statements, life cover, wills, receipts, before and after photographs of improvements etc).
If you were engaged – this may strengthen a non-owner’s case. Preserve evidence of the engagement (cards, announcements, invitations, receipts etc). Consider what evidence there may be of the date of termination of your engagement. Take action before 3 years has elapsed since your engagement ended.
Restriction against Dealings – if you are not the legal owner of a property, but you wish to make a claim you should take steps to protect yourself. This will prevent your former partner from transferring, mortgaging or selling the property until matters have been resolved. You will need a solicitor to assist you with this – take advice.
Joint Ownership Cases
If it is your home and there is no written agreement about your shares, the law presumes you own it in equal shares. The person wanting a bigger share must prove otherwise.
The legal presumption of equal shares does not apply to commercial or investment property.
For properties purchased after July 1998, the Deeds usually contain an agreement about your shares. The solicitor’s conveyancing file will tell you more. A clear agreement about your shares is almost always final.
Either party can ask the court to order a sale of jointly owned property. The court must take into account factors such as the welfare of the children when deciding whether to order a sale.
Other remedies are available such as asking the court to conduct an ‘equitable account’ giving one party credit for contributions to mortgage and other payments or awarding compensation where one party has been unreasonably excluded from the property.
Urgent Steps in Joint Ownership Cases
Severance of the joint tenancy – Your property will either pass to the survivor on the death of one of you (a ‘joint tenancy’) or to the deceased’s next of kin or beneficiaries under a valid Will (a ‘tenancy in common’).
When a relationship breaks down, you may want to change a ‘joint tenancy’ to a ‘tenancy in common’ so that your partner would not inherit your share if you were to die. You can do this by serving a simple notice, but should consider the advantages and the disadvantages with your solicitor first. The title documents will confirm the situation and we can easily and quickly check this on your behalf.
Locate the conveyancing file – If there is a dispute about your shares, this is an important source of information enabling us to help you resolve disputes in joint ownership cases.