Not Actually Married

Hi posting for a friend.

Situation is - living together for 25 years, never actually got round to getting married, 2 children - still living at home. Separating but house is not in joint names. Relations have finally broken down and friend needs to leave but doesn''t want to go without her share of money to start again. How can she put a claim on the house?

Many thanks

Oh dear. If they are not married and her name is not on the deeds, those case is a matter of property law. She would need to establish beneficial interest. If you use the search bar at the top of the page you can find Dukey''s excellent post on this subject.

How old are the children?

Hadenoughnow

Your friend needs to speak to a solicitor, claims when not married are dealt with under civil rules (part 8 CPR if i remember) its a TOLATA application, most wiki`s know about family rules, for the most part its the solicitors who know about TOLATA.

Many thanks

Will pass on advice - the children are both in secondary school - age 12 and 14.

In which case she also needs to inquire about the Children Act - there is a way that can be used to allow her to retain use of the equity while they are under 18.

This is the post re beneficial interest

www.wikivorce.com/divorce/Divorce-Advice...est-in-property.html

Hadenoughnow

hadenoughnow wrote:

In which case she also needs to inquire about the Children Act - there is a way that can be used to allow her to retain use of the equity while they are under 18.

This is the post re beneficial interest

www.wikivorce.com/divorce/Divorce-Advice...est-in-property.html

Hadenoughnow

Thank you very much. This will be very helpful for my friend.

When unmarried people buy property together, it is very important that they can agree on what the respective shares are to be ; and secondly, that this information is set out clearly in the purchase documentation.

The chances are that your friend would have an interest in the house, but the question cannot really be answered without looking at the title deeds.

As hadenoughnow rightly says, the Children Act is a possibility but you don''t say who is going to be looking after the children when they separate, and that, Millie, is crucial.

Where a property is jointly owned, it can easily happen that one joint owner wants to sell and the other does not. In cases like this, the ‘ remedy ‘ for the party who wants to sell to apply to the Court for an order for sale, using sections 14/15 of the Trusts of Land and Appointment of Trustees Ac 1996. ( TOLATA )

This post does not seek to go into the legal niceties.
However, as a general rule of thumb, we can make a few basic propositions.
• If there are dependent children involved it is likely that the Court will defer a sale until the children have attained their majority.
• If there are no dependent children the Court is likely to order a sale, but
• The Court may postpone a sale for a short time to give the parties time to prepare for a move.
It must be made clear that these are only general rules and legal advice should be sought in all cases.

The rules for determining the extent of the parties'' ownership are complex in the extreme. But I can try to give you the general picture.

As a general rule of thumb :
• Where one party is the sole owner of the property, the starting point is exactly that – the owner has 100% rights;
• Where the property is jointly owned the starting point is that the parties own in equal shares.
• If the deeds say that one party owns, say 75% and the other 25% then that is what their shares will be.
• If either party wishes to displace these basic rules the onus is on him/her to demonstrate why.
This is usually achieved by establishing contributions, for example, providing part of the initial deposit, helping with the mortgage, improving the property and so on – but not contributing to household expenses.
So, for example, in Kernott v Jones, the property that was the subject of the dispute started out by being owned jointly. But the Supreme Court decided that Ms Jones was entitled to 90%. The facts of this case were, almost certainly, not typical. But it demonstrates that it can be done.

I''m sorry, but neither I, nor any wikivorcer, could answer this one with any degree of certainty. We do not know nearly enough, and there are two sides to every story.

Legal advice is absolutely essential.

LMM