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.

Marriage

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.

A Child’s Wishes and Feelings in Children Act Proceedings

Divorcing Family Trying To Divide Child Custody

A Child’s Wishes and Feelings in Children Act Proceedings

When proceedings concerning a child need to be issued at Court it can not only feel like an arduous task, but also overwhelming in an already worrying time. Here, Jemma Wentworth looks at how the wishes and feelings of a child are taken into consideration when a court decides what is in their best interest, and how factors such as age and understanding play a role in the decision-making process. 

Proceedings may be necessitated for various reasons, for example, the need to define the time that the child spends with both parents, to address a specific issue surrounding the child such as changing their name or deciding which school they should attend, or even to determining whether permission should be given for leaving the jurisdiction.

Within Children Act proceedings, and as part of the Court process, the child’s welfare is of paramount importance and various factors need to be taken into account. These factors form the ‘Welfare Checklist’ and one of these factors is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.

If there is a disagreement between parents or those with parental responsibility, the Court may be asked to make decisions. In doing so, the Courts overriding objective is what is in the child’s best interests? Often, the most effective way to ascertain this is to speak with the child. This is where the child’s age and understanding plays particular significance.

An organisation called CAFCASS, the Child and Family Court Advisory and Support Service, shall be appointed by the Court and the officer dealing with the case shall speak with the child as part of the assessment process. In so doing, consideration of the Welfare Checklist forms their role, and the officer shall give full consideration to each individual child’s ability to express their view in light of their age and understanding.

Children as young as four or five shall be spoken to by the CAFCASS officer, but it shall be fully appreciated that a child of such young age is clearly limited in terms of their ability to communicate or form a viewpoint on significant life matters. Generally speaking, the older a child becomes, the more their expressed views will have relevance to the decision-making process.

Generally speaking, by the time a child is approaching High School age their viewpoint will be competently and pragmatically considered by CAFCASS, who in turn will file a report to assist the Court.  Each case is determined on its own merit, but the important factor is not only a child’s age, but also their level of maturity and understanding of what is being proposed and how such decisions will affect them.  These are all considerations that will be considered by CAFCASS within their report for the Court.

However, it is important to remember that not every child is the same and every case will be different.  These issues need to be discussed openly by the parents with an understanding that just because a child may express a certain view, does not automatically mean that the Court will make an Order on that basis.  The voice of the child is critically important to the Court, and it is only right that the child should be able to say what they would wish the Court to order.  However, it is a balance of factors that the Court must take into account, and the ascertainable wishes and feelings of a child is only one of those factors.  The older the child, the more the Court will consider their wishes and feelings in their decision making.

It is also incredibly important for parents to be mindful that regardless of where their child is at, developmentally, intellectually and emotionally, it is the Court who ultimately makes the decisions and therefore providing a child with the burden of the decision making could have a negative impact upon them as for some children that burden of having to ‘choose’ between parents is ultimately too much for them to carry.

If parents, and those with parental responsibility, are unable to agree important decisions for a child’s future, the Family Court alongside the involvement of CAFCASS, may well be the last resort. Having the right support and the right legal advice is crucial.   Here at McAlister Family Law we have an experienced and large Children Team who will be able to navigate you through what can be a difficult and emotionally charged process.

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