Taking a child on holiday with a different surname

Taking a child abroad with a different surname 

Now that the summer holidays have begun, you may be planning for a family holiday abroad. For most families in the UK with children, planning for a holiday involves taking certain precautions to ensure that they do not encounter any issues whilst travelling. This is particularly important for those parents that will be travelling with a child that has a different surname to them. Here Weronika Husejko offers her top tips for traveling abroad with a child who has a different surname.

What is the current situation?

In recent years, it has become increasingly difficult to travel abroad as a family in these circumstances. Many countries are stricter when it comes to parents travelling with children that do not have the same surname as them. Whilst this is a welcome change which promotes the safety of children all over the world, if you are not aware of this, a trip abroad can quickly become more stressful than anticipated.

How can I prepare?

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent.

Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

Written consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful as in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

And finally…

Make sure to do some research as the rules can vary. It is always a good idea to look into the guidelines of the specific country that you are travelling to. Most airlines should also be able to provide you with some basic advice for your trip.

If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

Can a child apply for financial support in their own right?

Can a child apply for financial support in their own right?

Do the family courts have jurisdiction to grant a financial order on the application of a child against their parents? The short answer is yes, but only in limited circumstances. Here Aaron Williams explains how in one particular case, a child was able to make such an application.

In the novel case of FS v RS and JS [2020] EWFC  63, ‘children’ were able to make such an application. The circumstances in that case concerned an adult ‘child’. The applicant (aged 41) was a university graduate and qualified solicitor, however, due to his mental health hadn’t worked since 2011. The applicant was at the time of his application in further education in London. The applicant’s parents historically provided him with financial assistance by letting him reside in their London property with all outgoings paid for; these circumstances changed however when the applicant’s relationship with his parents deteriorated, and their financial assistance was reduced.

The applicant applied to the court claiming that his parents had ‘nurtured his dependency’ on them financially, and that their removal of financial aid would leave him poor and destitute. His application to the court was threefold, namely under; a) Section 27 of the Matrimonial Causes Act, b) Schedule 1 of the Children Act 1989, and c) the Court’s power to protect vulnerable adults who have the mental capacity ‘to make their own decision (under its inherent jurisdiction).

The court ultimately determined that it did not have jurisdiction to make an order for financial support in the circumstances of this case; but in its determination considered the circumstances such an application could be brought by a child.

Section 27 of the Matrimonial Causes Act 1973

Section 27 of the Matrimonial Causes Act enables the court to make financial provisions where one spouse has been neglecting to maintain the other spouse or a ‘child’ of the family. In this circumstance a child of 16 or older may make an application to the court, but only where one of their parents has previously applied (against the other parent) for a periodical payments order in the child’s favour.

Schedule 1 of the Children Act 1989

Under Schedule 1 children who are over the age of 18 can make an application against their parent, provided: –

  1. The child is, or will be going on to higher education, undergoing training for a trade, profession or vocation; or
  2. There are special circumstances that justify the order.

The court found against the applicant on the issue of higher education, as the judge found that ‘conventional wisdom and practice would suggest that these provisions were never intended to be used and cannot be used to fund the education of a perpetual student’.

Special circumstances’ are not defined and are ultimately the discretion of the court but there are several cases which provide examples of what may consider ‘special’.

  • T v S [1994]: a physical or cognitive disability.
  • C v F [1998]: where a child was severely disabled and would be dependent on another person for their whole life.

In short, the courts generally consider that a parent’s financial obligation to their child ceases at 18 years of age, and that the child will usually no longer be dependant when they finish their education. It is only in one of the limited circumstances detailed above that an adult child can make an application against their parent for financial provision.

Do I still have to pay child maintenance when my child attends university?

Do I still have to pay child maintenance when my child attends university?

Lots of parents don’t know what level of financial contribution they are required to make (if any) when their children start university, and it’s something that isn’t talked about often. What if one parent wants to continue financial support and the other doesn’t? Here, Frances Bentley explains the requirements for separated parents to pay maintenance throughout their child’s academic career.

Child maintenance (as dealt with by the Child Maintenance Service), is payable until a child is age 16 or up to age 20 if they are in full time secondary education (college education). So, if a child finishes their A-levels/college education at age 18, the paying parent only needs to pay child maintenance until they finish, because university education does not fall under the umbrella of secondary education. So, there is no requirement to continue paying child maintenance beyond that time and when a child goes to university.

Lots of parents will decide to provide their children with a level of voluntary financial support whilst at university, but if one parents states they simply are not going to, the other parent may query whether there is a legal route for them to force contributions to their child’s ongoing educational costs.

If you are in this situation what should you do?

This is something that should be thought about by parents early on because the court’s powers are more limited once the age of 18 is reached.  Before considering any potential legal route, parents should keep lines of communication open, to discuss their concerns and the level of financial contribution that might be required.

There will need to be an exercise whereby you calculate what the child’s income vs expenditure will be. For example, are they going to receive grants, loans, or have any income from employment? What will their expenses be, so accommodation costs, bills, books, living expenses? The reason this is important is so that you can calculate what level of shortfall there is and what you need the other parent to pay. This is also what the court would do if a legal route was later pursued.

If there is no progress, then mediation could be a good option to talk through the issues with the other parent – a mediator is a trained professional who will allow you both to have your say and the aim would be to reach a financial agreement that way.

If an agreement cannot be reached, is there a legal remedy that a parent can pursue, once child maintenance has ceased and if the child needs ongoing financial support?

It is possible for a parent to make a court application under Schedule 1 of the Children Act 1989 for periodical payments (financial support) or for a lump sum for a child. However, the court only has powers to make orders until the child is 18, and if the children is over 18, they are required to make the application themselves.

For an application to be pursued, the child must be in “full time” education, or undergoing training, or there would need to be special circumstances (for example the child involved has a disability or vulnerability which means they cannot be financially independent).

When determining a schedule 1 application, the court would look at “all of the circumstances of the case” including:

  • the income, earning capacity, property and other financial resources which each person has or is likely to have in the future;
  • the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
  • The financial needs of the child;
  • The income, earning capacity (if any), property and other financial resources of the child;
  • Any physical or mental disability of the child;
  • The manner in which the child was being, or was expected to be educated or trained.

It is always important to seek early advice if you are wanting to know your options about making a court application. Our specialist team of family lawyers can advise you in respect of your options, prospects of success, whether an application should be made my you or your child directly (taking into account the court’s powers and the children’s age) and undertake a costs v benefits analysis of making any court application on your behalf.

We cannot agree on a school – What will the court decide?

We cannot agree on a school – What will the court decide?

If you are separated parents and cannot agree on what school your children should attend there are considerations that both of you need to keep in mind. Here, Jemma Wentworth discusses what happens when a separated couple cannot decide on which school their child should attend, and how the Court’s decision may vary depending on the care arrangement.

If it is agreed between you that one parent is the primary carer, meaning that one parent deals with the day to day needs of the children, and the children’s home is with that particular parent, then common sense must prevail. The school most local to that parent, or the school being selected by that parent, should be first consideration.

If that educational setting is not agreed by the non-primary parent, justifiable reasons must be put forward setting out why another setting should be considered. This is a scenario when obtaining legal advice would be beneficial.

However, if there is a shared care arrangement in place, thereby resulting that both parents’ homes are where the children equally call their home, and if the parents cannot agree on an educational setting, obtaining legal advice is vital and an application to the family court may well be required.

Initially, other forums for alternative dispute resolution to resolve the dispute must be attempted, for example, mediation. If an agreement cannot be reached, a court application should be issued.

The application that would need to be made comes under section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, if one parent has taken matters in their own hands and begins the process of changing the children’s school without the other parents’ consent, that parent would need to issue an urgent application to the family court to prevent the children’s removal from that school. This also comes under section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the children’s removal from the school without a court order to do so. In this case, any order of the court would need to be provided to the school as well as all those with parental responsibility.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Divorce and school fees – Will the court make my spouse pay?

Divorce and school fees – Will the court make my spouse pay?

One of the difficult parts of resolving financial issues in a divorce or separation is that, for most people, the lifestyle that they lead, their home and their expenditure is commensurate with the income which they have as a couple / family. Here, Lisa Brown breaks down how a financial dispute within a divorce can effect the school fees of children stuck in the middle. 

When the couple split, that same income must suddenly run two homes rather than one and it is often the case that something has to give.

That might mean a change in the standard of holidays or cars or a smaller home but what happens when it is your child’s education at stake?

For some people trying to make the maths work on a separation, a private education becomes something which is perhaps no longer affordable and / or they may feel that other family expenditure should be prioritised. If both parties agree then potentially there is no issue but very often that is not the case.

Children, on the whole, are an emotional issue when parties separate and it may feel to one party that it is of the utmost importance that a child’s education and some consistency and normality be preserved.

On the other hand, fees for day schools are likely to be in the region of £15,000 per child per year.  Boarding school will be more.  Bearing in mind children can potentially be in education for 14 years this could mean a commitment in excess of £200,000 for each child. This is significant and very often there may be more than one child to consider.

So, what is the court’s view

At the outset I should say that the fundamental question of what school a child attends is not dealt with as part of the resolution of financial claims. The court on an application about finances can only resolve the issue of who pays. That may ultimately settle the dispute if the court declines to make an order and the person who wants the children to attend private education has no other method of paying but sometimes the objection is not just about the fees but the principle too.

If there was an issue whereby one party was saying that even if it were affordable the children would be better off in state education, then this would be an issue to be determined under the Children Act 1989 in line with the child or children’s best interests.

In circumstances where the only question is fees the court test is slightly different and although the children will always be the court’s first consideration there are a number of factors to look at known as the “section 25 factors” to consider and set out below:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it (although this is not usually considered in reality in the vast majority of cases)

The primary issue with school fees is likely to be balancing income and needs to see whether it is affordable for school fees to be paid whilst also ensuring housing and other needs can be met.

Where the court feels school fees are affordable, they will make what is know as a “school fees order” obliging one or potentially both parties to pay all or a portion of the fees.  This obligation is on top of any child maintenance and any spousal maintenance payable.

Can capital be set aside to pay for fees by the court?

The short answer is no.  The court has no power to force parties to ring-fence a sum to pay for school fees.  Parties can and do agree to do this or to put funds into trust for that purpose and, indeed, one of the benefits of coming to an agreed settlement is that it can be more sophisticated than the court which can be a blunt instrument.  Legal advice should, however, be sought when considering this type of structure.

Grandparents have always paid- can the court force them to continue?

Again, the short answer is no.  The court has no power to force a third party continue to meet school fees although it is possible, they will consider the way school fees have been met historically when making any decision overall.

What will a school fees order cover?

Standard wording might often cover “reasonable invoiced extras” perhaps specifically excluding exceptional items such as trips, but it is sensible to give consideration to what the expectation is.  Are buses covered, lunches, uniform and so on?


There is no easy answer to this question, and it very much depends on the circumstances of the case including income / assets, how many children there are and where they are in their education.

It is important to look at the bigger picture and the outcome of your case generally.  For example, carving out a school fees fund might seem attractive because it secures your child’s future, but it might prejudice your position overall if it is the case that those fees should really be being paid from your spouses’ income and the monies set aside in the fund should be divided between you meaning you would receive more capital.

Before reaching any final financial settlement whether in relation to school fees or anything else you should always speak to an experienced family solicitor.  If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

We are separated – do I have to leave the home?

We are separated - do I have to leave the home?

We are separated – do I have to leave the home? 

If you have co-habited with a partner and are now going through a separation it can be a very difficult time. But not knowing whether you should stay or leave the home where you have lived together can make things even more stressful. Here, Jemma Wentworth asks a series of questions to help you make your decision.

It is important to know the facts and how to apply them to your particular circumstances. Please use the questions below to help you make the decision that is right for you.

Has there been domestic violence?

If there have been instances of domestic violence it is important that you seek legal advice in regard to the safety of yourself and your family where relevant. It may be possible for you to apply for a non-molestation order or occupation order to ensure both your protection and that you remain living in the property to the exclusion of your ex-partner. If the property has been your home, there is every possibility that you should remain living there and not vacate, especially if you have children. Every case is specific to the individual and we shall offer the advice that is relevant to your circumstances.


Are you and your partner the names owners of the property?

If both you and your partner are the named owners of the property, you are a legal owner and have the right to occupy. Again, your specific circumstances need to be considered, however, it could be that you remain in the property and your ex-partner will need to vacate. If so, how will that work? If the property is subject to a joint mortgage, do you have the capacity to take on the mortgage on your own? Do you have the ability to meet the monthly mortgage payments? What payment should be made to your ex-partner? It is strongly encouraged that you seek advice from a financial advisor or mortgage broker to look at all of your options.

Is your ex-partner the only named owner of the property?

If your ex-partner is the only names owner of the property, it is important to look at your options. If you are not an owner and you are not married or in a civil partnership, you do not have an automatic right to remain in the home. However, you may be able to apply for a court order that allows you to stay in the home for your child/ren’s benefit. If you feel that you have a right to remain, it is necessary to look at how the law can help you. The Trusts of Land and Appointment of Trustees Act 1996 may be of assistance in circumstances where you have a beneficial interest in the property in some way. For example, have you paid toward renovations? Have your contributed towards the mortgage? Was the property always intended to be your hoe as much as your ex-partner and do you have evidence to prove this? If so, it is possible to establish a beneficial interest and therefore your right to remain could be argued. There are many varied and fa-ranging ways for this to be determined and you should seek legal advice for your specific circumstances.


On the other hand, if neither you nor your ex-partner own the property, it may be that your property belongs to a family member or you are renting the property, it is likely that neither of you have the legal right to remain on a long-term basis. If you are renting a property, you may wish to remain living there without your ex-partner. This is something you should address with the landlord and it will be subject to contractual obligations. However, it may be that you will both need to vacate the property and start fresh independently of each other.

New no-fault divorce proves to be very popular

Divorcement. Man And Woman Hands Tear Apart Wedding Photo

New no-fault divorce proves to be very popular

It has been over two months since the new no-fault divorce legislation came into force and it has proven to be very popular. Here, Fiona Wood discusses why she believes this may be and looks at the new reality of the divorce process.

In April this year new divorce legislation came into force which means that all divorces are now issued on a no-fault basis. Prior to then you could only have a no-fault divorce if you had been separated for at least two years. If you had not been separated for that long, the only way that a couple could divorce was for one of them to allege the others adultery or unreasonable behaviour and assign blame for the marriage ending. This often led to increased animosity between the couple, which could impact their ability to co-parent effectively or have constructive discussions regarding their finances.

Lawyers had lobbied for a no-fault-based divorce system for many years, as they could see the negative impact that the old system had on a lot of divorcing couples. It would appear that the public also welcome this change, as HM Courts &Tribunals Service have revealed that 12,978 divorce applications were made under the new system in April 2022. In April 2021 they received 8,729. The total number of divorce applications made in 2021 was 107,724.

A new feature of the no fault divorce legislation is that couples can now jointly apply for a divorce. Of those applications made in April 22, 2,771 (21%) were jointly applied for. Joint applications may well increase going forward, when more divorcing couples become aware that this is possible.

It is my view that the increased number of those issuing divorce applications in April 2022, is due to separated couples waiting until the new legislation came into force, so that they can have a no-fault divorce. Whilst some expressed concerns that a no-fault divorce system would make it easier for couples to divorce, my experience is that those who decide to divorce do not make this decision lightly.

Many couples spend time trying to make their marriage work. If they do decide to divorce, the majority are keen to make the process as conciliatory as possible. The increase in popularity of alternative forms of dispute resolution, such as mediation and arbitration, rather than court, to resolve issues regarding finances and arrangements for the children, when a couple divorce, shows that many who divorce are keen to avoid blame and to take a more constructive and pragmatic approach.

We are getting divorced – Do I have to sell the house?

Real Estate Agent And Customer Discussing For Contract To Buy

We are getting divorced – Do I have to sell the house? 

After making the difficult and emotional decision to get divorced following separation, there are so many questions and worries that can arise. One common concern for separating couples is what happens to the family home – will you have to sell it? The honest answer is, not necessarily but it depends on a number of factors considered below. Here, Brigid O’Malley breaks down Matrimonial rights and how financial matters are dealt with upon a divorce.


Who owns the property?

If you own the property in your sole name, then you have the right to remain living there and you do not have to sell unless there is an agreement to do so or a Court order. Your spouse may register Matrimonial Home Rights.

If you own the property jointly with your spouse, you both have the right to remain living there unless there is a Court Order setting out who can and cannot occupy the property. An Occupation Order is often made when one spouse requires protecting from the other spouse and the rights of occupying the property need to be determined to ensure the safety of a person and any children of the family. It should be noted that if either you or your spouse leave the property temporarily for any reason, you or they can re-enter the family home freely when the property is jointly owned, unless there is a Court Order to prevent this.

If your spouse is the sole owner of the property, then you still have a right to live in the property as their spouse, but you should consider registering Matrimonial Home Rights.


What are Matrimonial Home Rights?

Matrimonial Home Rights are registered with the Land Registry to preserve your (or your spouse’s) right to:

  • Live in the property;
  • Prevent your spouse from selling, transferring, or disposing of the property without you first being notified; and
  • Request a Court Order to allow you to move back into the property if you have moved out.

It is straight forward to register Matrimonial Home Rights and there is no fee with the Land Registry to do so. It is a very effective way of preserving your rights in respect of the property. However, this is only a temporary solution as Home Rights end when divorce proceedings are finalised, so it is essential to resolve the financial matters generally before finalising the divorce.


How are financial matters dealt with upon divorce?

It is important to understand what the court will take into consideration when determining what a fair financial settlement should be and indeed whether any properties should be sold. The factors the Court look at are set out in section 25 of the Matrimonial Causes Act 1973.

The first consideration is the welfare of any children of the family and the remaining factors will be considered by the Court in order to determine what is a fair distribution of the marital assets in order to meet the needs of each of the parties. The starting point is an equal (50/50) division of the assets.

Each party has a duty to provide full and frank disclosure of their assets, income, and liabilities in financial remedy proceedings. This means each party has a legal obligation to be honest and disclose everything they own. This is an ongoing duty throughout the proceedings.

Firstly, we need to establish what the marital assets are (which will likely include the family home) and then consider how those assets should be divided.

So, do I have to sell the house?

The honest answer is… it depends.

Once we have determined what the matrimonial assets are (following full and frank disclosure), the next consideration is how those assets should be divided to achieve a fair financial settlement.

There are times when the family home has to be sold in order to release the parties from their obligations under the mortgage and provide each party with funds to rehouse themselves and the children, whether by buying another property or renting.

Sadly, sometimes there is not enough in the asset pot to go around and avoid the family home being sold.

It is possible for the family home to be transferred to one spouse, often with monetary consideration i.e., you buy out your spouse’s share in the property.

There can also be a deferred sale of the property where one spouse is allowed to remain living in the property until a “triggering event”, usually those events (although they can be tailored to each individual case) are:

  1. If applicable, when the youngest child reaches the age of 18 or finishes full time education;
  2. When the party that remains living in the property begins cohabiting with a partner or remarries;
  3. The death of either party; or
  4. An order of the court.

Once a triggering event occurs, the house is usually sold, and the net equity is divided between the parties. The amount of equity received by each party is either agreed between the parties or determined by the Court. This option is often used by couples who wish to allow the children of the family remain living in the family home for their minority. It provides a period of certainty for the children but also provides both parties with some funds from the sale of the property in the future.


Do we have to go to court to decide what happens?

No, but sometimes a court application is inevitable.

You and your spouse can agree the arrangements privately between yourselves or can attend mediation to try and resolve the issues between you. Solicitors can also assist by negotiating with your spouse/their solicitors. If an agreement is reached then we would advise you to have that agreement incorporated into a Consent Order, preferably on a clean break basis to prevent future financial claims against the other.

If it is not possible to reach an agreement, then an application for financial remedy can be made through the Family Court. This provides the parties with a firm timetable and structure, hopefully resulting in a settlement but if not, the case will be timetabled to a Final Hearing for a Judge to determine what a fair financial settlement should be.

A committee led by HHJ Stuart Farquhar published a report stating there were 30,993 cases considered by the Financial Remedies Court in 2020 and approximately 50% of cases settled before the Final Hearing.  Therefore, even if you have to issue financial remedy proceedings there is a high chance your case will settle without the need for a contested final hearing.


So, what next?

If you need advice about the family home following separation or about divorce and financial matters generally, please get in touch with our expert team of Family Solicitors who will happily assist you.

We are not married – do I have a claim on the house?

Real Estate Separation After Divorce Concept. Keyholders In Form Of

We are not married – do I have a claim on the house?

So you’re not married but want to know if you have a claim on the house. Well, the short answer is that it depends on a couple of factors. Here, Lisa Brown explains why you may or may not have a claim on the house and how having children makes the situation slightly different. 

If your name is on the deeds

If your name is on the title deeds, then the answer is generally yes, although the level of that claim will depend on the documents you signed when you purchased the property.

But what if it isn’t?

If your name is not on the title deeds it is more complicated and it will depend on whether:

  1. There was common intention to share the property
  2. You relied upon that to your detriment, for example, you paid for renovations on that basis.

Part of the problem is that where parties cannot reach an agreement about this the law which applies (Trust of Land and Appointment of Trustees Act 1996- known as TOLATA) does not allow judges the level of discretion which they normally have in family cases.  This can lead to outcomes which just seem fundamentally unfair.

TOLATA is not designed with cohabiting couples in mind and, in addition, the way in which TOLATA cases are dealt with procedurally in terms of deadlines and costs rules is more aligned with commercial litigation than it is with family.  This can mean that people are left in a position where they just do not feel able to deal with a claim themselves and they cannot afford to pay solicitors.

Back in 2007 the Law Commission recommended that the law in respect of cohabiting couples be changed in England and Wales, but it just does not appear to be high up on the political agenda.  It is worth noting that the law in Scotland in relation to cohabitation did change in 2006.

Between 1996 and 2020 cohabiting couples in England and Wales increased by 137%.  There are also currently many couples living together who had to delay their wedding due to the Covid 19 pandemic and many more who, due to the economic impacts of the pandemic, may simply not feel able to afford to get married.  It is unlikely that any of them realise the legal ramifications if they separate and the limits as to what can be done legally.  It is a significant issue and one which needs addressing.

Common law husband/ wife?

Another problem in this area is the perception that, if you are living with a partner for a long time, you become common law husband and wife.  This is simply not true.  Whether you are living together for 3 weeks or 3 decades the law applied is the same.

What if there are children involved?

The situation is slightly different if you have children with your partner.  In those circumstances you can also have claims on behalf of them for housing needs to be met under Schedule 1 Children Act.   This arguably gives the court more scope for discretion to consider overall fairness, but it is led by the needs of the child or children.  As such, if for example, the court ordered that you could remain in the property to meet the housing needs of the children that arrangement would normally come to an end once the children are adults.

So, what can I do?

It is important that cohabiting couples consider the “worst case scenario” and if you are purchasing a property thought is given to whether one person is contributing more and whether that should be reflected in the title deeds.

Cohabiting couples can also enter into a cohabitation agreement to regulate what would happen should they separate in the future and also (if they wish) the arrangements between them whilst they are together, for example who pays which bills.  This can provide certainty and avoid potential stress and costs later down the line.

There may well come a time where there is a change in the law but, for now, if you are living with a partner in a property which one or both of you own, it is important to consider whether the title deeds of that property properly reflect how you see the ownership and, if not, seek legal advice as to how best to have this corrected.

I put the deposit down on the house – Do I get more if we sell it?

Selective Focus Of Miniature Angry Woman With Miniature Man And

I put the deposit down on the house – Do I get more if we sell it?

The answer is…. it depends. It depends on a number of factors, and the answer can change according to your individual circumstances. To explore this topic, and to show how the answer may change over the course of your relationship, Frances Bentley  will explain about the purchase of her own house.


Cohabitation – couples who are not married

My partner and I bought my house (in joint names) in December. I put in the deposit which we agreed should be protected, should we ever separate in the future. We are not married (yet!).

We decided to enter into a declaration of trust, which is the best way to protect a deposit payment if one party puts down all or the majority of it. A declaration of trust is a document which outlines your intention as to how you own the property/ and who should get what in the event of a later separation. Our declaration of trust outlines that should the property ever be sold in a later separation; the deposit payment will be returned to me and we then divide the remainder of the proceeds equally.

As we are not married, the legal position with a jointly owned property is that “equity follows the law”, so unless there is a declaration of trust confirming otherwise, as we own the property jointly, the law would say the starting position is that the proceeds should be divided equally. However, as we do have that declaration of trust, in law, that should be followed instead.

So, the declaration of trust is a really important document.

If I had put a deposit into a property that my partner was buying in his sole name, then this becomes potentially even more difficult. Again, unless there is a declaration of trust in place confirming the deposit payment is to be returned to me, then, legally, because of the “equity follows the law” rule (and because we are not married), to depart from the position that my partner gets 100% of the equity upon a later sale, I would have to evidence that there was a “resulting” or “constructive” trust, which is difficult to do and a very complex area of law.

So, it is important to consider getting a declaration of trust for couples who are cohabiting/ not married.


My partner and I are going to get married in August 2023, so how does this change the position/impact on the Declaration of Trust that we entered into?

This answer may actually change over time. The family home would become a matrimonial asset, and the starting point, for division of assets on the breakdown of a marriage is 50/50. That said, in a short, childless marriage (a marriage of, say, under 5 years) then a Declaration of Trust may still be persuasive (but not binding) if there was a later dispute.

However, if we have children, their needs will be the court’s “paramount consideration” in a later marriage breakdown, so, if the monies in the house are needed to meet the needs of the children, that would be the deciding factor. Also, the longer the marriage, the harder it is to depart from a 50/50 division of assets. So, a declaration of trust entered into before a marriage lasting say 25 years will not carry much weight, as the court will say that the assets/finances of the parties have become “intermingled” due to the length of the marriage.

To best protect your position, if you are going to get married or have just married, you could enter into a pre-nuptial agreement or post nuptial agreement – and whilst not legally binding they can be persuasive upon a later dispute on marriage breakdown.

So, as you can see, the answer to the question “I put down the deposit, will I get more” depends on a number of factors, including how the property is to be owned, whether or not a declaration of trust is entered into, whether or not you get married and how long you are married for.

Whichever way you look at it, the best way to protect any deposit payment is to consider how you are going to own the property at the outset and then explore your options. For example, you should take advice from a family lawyer as to whether you should enter into a declaration of trust, pre-nuptial agreement or post-nuptial agreement. At McAlister Family Law we can discuss these options with you and provide you with advice specific to your circumstances.


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