15 commonly asked questions about Co-habitation and Separation. Please contact us on 01634 299210 if you have a specific inquiry.

1. Are the principles the same as divorce?

The simple answer is no. There does not need to be any formal court proceedings to signify the end of the relationship and as many unmarried couples discover, often to their surprise, living together in a property does not automatically give them a right to a share in any equity in the property upon breakdown of the relationship nor any right to pensions or other assets accrued in either parties’ sole names. Unmarried couples are entirely reliant on the rigid principles of land and trusts law to determine any dispute over ownership of property rather than the broad powers the Court has when determining financial settlement upon marriage or civil partnership breakdown.

2. How are the shares in the property calculated?

If there is no formal agreement at the time of purchase of the property or the property is registered in one party’s name, the Court approach the matter by looking at the intention of the parties either at the time of purchase or if one party moves into the property after purchase, at that time. Such intention can be shown in many ways and specific advice should be sought as to how the Courts could decide the matter relating to your specific circumstances.  Physical and financial contributions by both parties will need to be considered carefully.

3. What if I have an agreement at the time of purchase?

When parties purchase a property jointly, thought is often given to the shares that each party will hold depending on their contributions on purchase or any subsequent assumption of liability for ongoing bills. The documentation drawn up at the time of the purchase is usually termed a ‘Declaration of Trust’ or a "Trust Deed" and would usually be conclusive in ascertaining the parties’ shares in the property. This is however, not always the case and advice should be sought on the terms of the agreement and the effect of the documentation if there is any doubt.

4.  The agreement made at the time of purchase did not reflect our wishes.  What can be done?

There is a slight possibility in this instance that the agreement reached at the time of the purchase could be overturned.  The burden would, however be on you to show why the agreement did not reflect your wishes at the time and the standard of proof is very high.  Any documents you have to support your claim are very important at this stage.  Further advice from Martin Tolhurst should be sought as soon as possibel with regard to this matter.

 5.  My name is not on the deeds.  Do I have to leave?

This will depend on the promises and actions apparant at the time you commenced cohabitation in the property but you should not leave without seeking advice from one of our Solicitors first.  Usually whether or not you are making payments towards the bills or the mortgage by way of rent, you still occupy the property under informal licence which can only be terminated by way of a correct notice being sent to you.  In certain circumstances, if you you have made payments towards the mortgage directly or have done something which has caused you to suffer monetary or other loss because your partner promised you could live at the property you may even have a claim on the equity in the property.

6.  Can the property be sold without me knowing?

If you are registered as an owner or joint owner at the Land Registry the property cannot legally be sold without your consent.  You will need to sign the Transfer document for the ownership of the property to be amended by the Land Registry.  If you are not a registered owner of the property and you think that you may have a right to some of the proceeds of the sale, Martin Tolhurst can provide you with legal advice to protect your share before any sale of the property is completed.

7.  What about any furniture?

 Disputes over the contents of the property can be very costly.  Usually the contents will remain in tehepossession of the party who retains the property.  Sometimes schedules of the contents and agreement as to their division are prepared and annexed to any financial agreement reached between the parties.  Further specific legal advice may be necessary if any of the contents are particularly expensive, subject to finance agreements or have great sentimental value.

8.  I rent my property, what do I have to do?

If the tenancy is in joint names you may need assistance in dealing wtih the transfer of the tenancy if one  or other of you wishes to stay and the other tenant does not agree.  You will need to seek confirmation from the landlord that they are prepared to transfer the tenancy into one or other of your sole names.

9.  What about the children - Is that different to divorce?

The children's welfare is the paramount consideration of the Court when dealing with issues surrounding residence and contact (formerly custody and access) issues.  The Courts will only make and Order where absolutely necessary and child maintenance issues are the same in that the non-resident parent will be reponsible for making payments of child maintenance.  There is however a major difference between the position of married and un-married fathers regarding parental responsibility.  An unmarried father can only acquire parental responsibility (i.e all the rights and duties associated with the child) by obtaining a written agreement with the mother, a Court order, or if the child was born after 1st December 2003 the mother must have registered the unmarried father on the Birth Certificate or subsequently married him.  Otherwise, parental responsibility is not automatic for an un-married father and consideration should be given to entering into a parental responsibility agreement if the unmarried father wished to be consulted over any major decisions concerning the child.  A parental responsibility agreement can be quickly and easily prepared if both parties are in agreement.  Martin Tolhurst has the expertise to review your personal circumstances and advise accordingly.

10.  We have a joint account - Can I still access the money?

There are no strict rules on this issue.  You should exercise common sense.  It is not advisable to remove all of the money from the account or a substantial portion of it unless you have the consent of the other account holder.  You may consider simply continuing as you would have done had you been together and maintain the account sufficiently to pay all joint bills until matters can be agreed.  If more specific advice is required, speak to us and we can review your own situation.

11.  What about pets?

Pets are not treated in the same way as children.  There are no Orders available for residence or contact with pets who have been part of the family and disputes as to continued care and financial payments for pets can be very expensive to resolve.

12.  Do I really need a solicitor?

Relationship breakdowns can be confusing and distressing.  It is likely that you will have a number of specific questions which this brochure cannot cover.  Outcomes can differ in each case depending on the individual circumstances surrounding it.  This is why the way in which your matter is handled and the quality of advice obtained from the very outset is extremely important.  Martin Tolhurst has experienced and sympathetic experts in this field who can provide you with good advice for your matter to be handled in a way that will reduce any distress.  This will enable you to focus on any other pressing issues.

13.  Will I have to pay any legal fees?

When you instruct Martin Tolhurst to negotiate matters on your behalf, we will provide you with an estimate of our fees at the outset.  The overall fees can vary from a few hundred pounds to many thousands of pounds depending on the issues in dispute and the value of the assets in question.  If formal Court proceedings are required the matter can become very expensive.  If you are selling or transferring a property, unless you both agree otherwise, the fees should usually be met equally as you are both receiving the same service irrspective of the reason for the breakdown of the relationship or how the transaction has arisen.

14.  I hear the law is changing, is that true?

At the time of publication of this information, the full extent of the Government's proposals to change the law in this area are unknown.  Martin Tolhurst will be able to advise you on the legislations as and when any changes occur.

15.  I have been offerred the chance of mediation, what should I do?

The decision is ultimately yours. Mediation can be cost effective, less formal and can promote a better relationship between the two of you, which is especially important where there are children involved.  Mediation should only be considered with a qualified mediator and where both parties are willing to be open and honest about their wishes and feelings.  Mediation can be attempted before seeking legal advice or in addition to doing so.  There are many mediation services available throughout Kent.