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What happens to the House after separation?

 
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Information about what may happen to your house,and your housing rights post-separation

It’s actually pretty important that a couple buying property with a view to joint occupation should take legal advice before buying and preferably take advice on their own account. Doing it at this stage can avoid considerable problems at a later stage if the relationship breaks down. Of course this is decidedly unromantic ; but that’s the way it is.

There are three possible ways of establishing that a person who is not named as a legal owner has legal rights over the home. In all cases it will be necessary to get specialist legal advice as soon as possible. If you and your partner agreed that the home was to be shared, even though it was put in the name of only one of you, you may be able  to establish that you own a share (called a ‘beneficial interest’). The amount of the share would be calculated according to the contributions you have made to the home. This could include contributions such as paying bills or contributing to maintenance and decoration as well as direct contributions such as paying the mortgage or deposit.

If there was no agreement but you made a direct contribution, for example by paying some of the deposit or mortgage payments, you may still be able to establish that you own a share. However, only direct financial contributions to the purchase of the home will be taken into account. Again, this is called a ‘beneficial interest’. In some cases, there is no contribution but one partner has given up  something  valuable because of promises made by the other  partner. An example may be where someone has given up a long-term tenancy to move in with a partner who promised s/he would  have a home for life. In such a case, it may be possible to prevent the person from denying  that  promise, with the effect  that you could have an enforceable right to live in the home but it is rare for such situations to be so clear cut. In all of the above cases, unless you can reach agreement with your ex, you will have to go to court to get the court to order that you do have a share (or right to remain in the home) and how much your share is.  If there are children involved, a court can order a transfer of the home to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed. In practice this does not mean  that the non-owner gets a share of the home, but may get the right to remain in it while it is the home for the children – until they reach 18 or leave full time education.

Home owned in joint names: joint tenancy

On the face of it, you share the home equally. If a 50:50 split is not fair because of what you have both contributed, you can negotiate or take the matter to court.  However it may be hard to make a successful claim if you had clear advice about the meaning of a joint tenancy when you bought the property. On the other hand, if you did not have advice about this from your solicitor when you bought  the home, you may be able to sue the solicitor. If you have children together, a court can order a transfer of the tenancy to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed. This does not mean that they get a larger share of the home, but simply that they can stay in it while it is the home of the children – until they reach 18 or leave full time education. You can only sell the home  if both owners agree to it. This often causes problems  if one of you wants to stay in the house and can’t offer a fair price to buy the other’s share. You can take the  issue to court, but this is time consuming, costly,  and stressful.

Home owned in joint names: tenancy in common

On the face of it, you own the home in the shares that were specified when you bought the property. If you did not specify unequal shares, the law will treat you as owning it 50:50. If a 50:50 split is not fair because of what you have both contributed, you can either negotiate a deal or take the issue to court. You would usually have to show that you had an agreement, whether written or simply understood, that you did not have equal shares and that you had contributed unequally along the lines of this agreement. If you have children together, a court can order a transfer of the home to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed. In practice this does not mean that you get a larger share of the home, but you may get the right to remain  in it while it is the home of the children – until they reach 18 or leave full time education. You can only sell the home if both owners agree to it. This often causes problems if one of you wants to stay in the house and can’t offer a fair price to buy the other’s share. You can take the issue to court, but this is time consuming, costly, and stressful.

Assured Shorthold, and Regulated Tenancies

If you are the person named  on the tenancy you can ask your partner to leave. He/she should be given reasonable notice but has no right to stay. If the tenant leaves, you can ask the landlord to allow you to stay on and give you a new tenancy in your name, but he or she doesn’t have to do this. In some circumstances if a landlord accepts rent knowing the tenant has left, it can be argued that a new tenancy has been created. Under Schedule 7 of the Family Law Act 1996, the court can order the transfer of the tenancy to a live-in partner when a couple split up. You might ask a court to do this if you would be in a very vulnerable position otherwise (for example, if you will be looking after  the children and would otherwise be homeless, or if you had been the victim of violence).  If you  have children a court can order a transfer of the tenancy to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed.

Regulated tenancies

If you split up and one tenant leaves, the other remains entitled to stay.  If you stay you may want a new tenancy in your name only, to prevent your ex from having the right to return. This would have to be negotiated with the landlord. To ensure you keep the same level of security you should get legal advice. Under Schedule 7 of the Family Law Act 1996, the court can order the transfer of the tenancy to a live-in partner when a couple split up. You might ask a court to do this if you would be in a very vulnerable position otherwise (for example, if you will be looking after the children and would otherwise be homeless, or if you had been the victim of violence).  If you have children together, a court can order a transfer of the tenancy to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed .

Council tenancy in one person’s name (and Housing Association tenancies that began before 15th January 1989 onwards)

Unless it is temporary  accommodation or comes with a job, most new council tenancies will start off as ‘introductory tenancies’. After one year they automatically become a ‘secure tenancy’, provided no action has been taken by the landlord to start possession proceedings.  The rights of introductory tenants are broadly the same  as secure tenants.  If you are he person named  on the tenancy you an ask your partner to leave. They should be given reasonable notice, but have no right to stay. If you are the tenant and you have decided that you will leave you can formally hand over the tenancy to  your partner before you go. This must be done legally, by “deed”. It is only possible  if there has not been a previous succession and you have lived together in the premises for at least the previous 12 months. It should be done immediately you’ve made the decision, before you go, as it only applies if you have lived together as a couple for the  12 months prior to the transfer. If you leave without signing over the tenancy,  the secure tenancy ends  and the Council can start proceedings to kick your ex out. They could also grant a new tenancy, if your ex can show that they meet the Council’s housing criteria. Under Schedule 7 of the Family Law Act 1996, the court can order the transfer of the tenancy to a live-in partner when a couple split up. You might ask a court to do this if you would be in a very vulnerable position  otherwise (for example, if you will be looking after the children and would otherwise be homeless, or if you had been the victim of violence).

Council tenancy in joint names (and Housing Association tenancies that began before 15th January  1989 onwards) .

Unless it is temporary accommodation or comes with a job, most new council tenancies will start off as ‘introductory tenancies’. After one year they automatically become a ‘secure tenancy’, provided no action has been taken by the landlord to start possession proceedings. rights of introductory tenants.

What happens  if you split up? You will have to decide who will stay in the home and who will go, unless you both decide to leave and give up the tenancy. You should discuss this with the council before you make a decision, as they may not agree to grant a single tenancy to one of you. Either of you can give notice to quit, which will end the tenancy. So if you are staying are broadly the same as secure tenants. This is beyond the scope of an introductory article and it is recommended that both parties take separate legal advice.  Make sure your partner doesn’t give notice. You may want to have a new tenancy in your name only. If you want to do this make sure you get a written agreement from the council confirming that they will grant you a tenancy in your name only before you give notice to quit the joint tenancy. If you don’t, they may try to evict you. Under Schedule 7 of the Family Law Act 1996, the court can order the transfer of the tenancy to a live-in partner when a couple split up. You might ask a court to do this if you would be in a very vulnerable position otherwise (for example, if you will be looking after the children and would otherwise be homeless, or if you had been the victim of violence).  If you have children together, a court can order a transfer of the tenancy to a parent on behalf of the children under the Children Act 1989. This would typically happen to keep the children housed. If you are going to apply for a transfer of the tenancy it is important to make sure that your partner does not give notice and bring the tenancy to an end. If this happens the court is powerless to order a transfer. You may need to get an injunction to prevent your partner giving notice.

Occupation orders and domestic abuse

Where this is an issue, the Court has a whole range of remedies at its disposal, including the so-called ‘ occupation order ‘ which,  in spite of its name, can exclude a spouse from the house or part of it ; and a ‘ non-molestation order ‘ which is more or less what the title suggests it is.

All of these are matters calling for specialist legal advice and are beyond the scope of an article of this nature. There is little more that can be said here, apart from notice that such remedies do exist and can be used to exclude an abusive spouse/partner or prohibit certain acts of harassment.

Note also that these remedies are not restricted to married people or even civil partners ; they can cover a wide range of relationships.

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