Legal ownership does not affect who is entitled to the proceeds of the sale of the home. This is governed by the principle of beneficial interest. This establishes the financial value owing to each partner if the home is sold.
If only one of the partners is the legal owner, the other (whether married, a civil partner or a cohabitant) may still be able to claim some of the financial value of the property. This is because s/he may have a beneficial interest based on contributions s/he has made to the purchase and/or the intentions of both partners when the home was bought.
If a couple are joint legal owners, this does not mean that they have equal rights to the financial value of the home. They may not have an equal beneficial interest in the property.
Certain people will only have rights because of their beneficial interest. Partners who are not married or civil partners who are not legal owners can only have the long-term right to occupy, prevent a sale or obtain any proceeds of a sale if they have a beneficial interest. This is why it is important to establish the existence of a beneficial interest.
Rights of a partner with beneficial interest
If a partner has a beneficial interest, this means s/he:-
has the right to occupy the home. This right can be enforced on a short-term basis by applying for an occupation order
may be able to prevent the sale or use of the home as security to raise a loan
is entitled to a share of the proceeds of the sale of the home based on her/his beneficial interest.
How to establish the existence of beneficial interest
A written, signed declaration or a formal trust deed which indicates the partners' intentions about their financial shares will establish that a beneficial interest exists. Solicitors are supposed to arrange this when a couple buy a property. If they do not, it may be a failure of professional duty.
If there is no formal statement, the existence of beneficial interest can be established by applying to court (usually the county court).
The court will look for any evidence of a common intention, which could be an informal discussion or understanding, as long as both partners are aware of it.
If the court cannot find any common intention, the division of interest will depend on the amount each partner has contributed to the purchase and/or housing costs of the home, as long as these were not intended as a gift.
A couple can apply to court for their financial shares in the home to be valued at any time. It does not matter if one of them has already moved out of the home
Does beneficial interest extend to property owned by the parent of one party in a divorce?
I already have Decree Absolute. And now the ex has submitted a financial claim. Having recieved notification from the court for form E exchange and dates for the hearing, I read on the last page the ex is trying to get property adjustments on 2 rental properties and one residential property owned by my mother, furthermore the ex is being advised by a solicitor.
Is this remotely possible that the ex can a claim upon those properties?
Beneficial interest exists between two people who are married cohabit or civil partnership, the only way a third party can be involved is if a trust exists benefiting a partner involved in the financial dispute.Even then consideration must be given to the length of trust, was it formed before marriage (or the others) in defense of a potential claim, what does the trust actually state, letter of wishes who formed the trust (selltor).
So do you have a financial interest in your mothers property?.
Could an undocumented claimed beneficial interest be carried over from one property to another? for example,house no 1 bought in such a way that one party paid a greater part..say a deposit,failed to document their greater interest despite advice and then proceeded to verbally assert that interest when house 1 was sold and the full proceeds used to finance house 2,again with no documented interest being declared on house 2 purchase?