Where a marriage breaks down, the courts have considerable scope to determine how the family home should be dealt with.
When unmarried couples split up, even when there are children of the relationship, the courts have considerably less discretion and must apply legal principles derived from property and trust law rather than family law. There is no 'common law marriage' that treats the parties as if married. The effect of this is that the courts cannot necessarily have regard to the overall picture of the relationship, but may be constrained by a strict application of what the property title records.
Cohabitees’ homes may be purchased in only one of their names, or may be jointly owned whether in equal or unequal shares. Our experience has shown us there is very often a mismatch between the respective financial contributions and the shares the parties in fact acquired at the time of purchase. This may reflect a sense that the relationship is strong and based on trust and that it is not necessary to mark out financial interests with precision. It may sometimes be the case that important property ownership principles such as “joint tenancies” or “tenancies in common” were not fully explained or understood. This mismatch can become even more pronounced as time passes. One party may pay off the mortgage or make improvements to the property expecting this to automatically increase their percentage share, when the reality is it often will not.
If the relationship subsequently breaks down, questions arise as to what should happen with the property and to the proceeds of sale in the event that it is sold. One person may, for example, wish to continue living in the property, while the other may wish to sell it. Equally, both parties may agree to sell the property, but may disagree on how the sale proceeds should be divided between them if the expectations of entitlement are inconsistent with the strict legal rights. Such questions are decided by application to the court to judges with property law experience.
Property disputes of this nature are therefore handled by our experienced property litigators, Laura Tanguay and Stephanie Butler, who specialise in this complex area. Unlike many other law firms, who rely upon family lawyers in this area, your case will benefit from Richard and Laura’s property law experience to ensure that you achieve the best possible outcome. Where children are involved it can become more complex. An unmarried parent can make a claim against the other parent that a house be provided for the children until they are 18. These claims can interlink with the strict property rights which both parents are seeking to assert in relation to their home. In those cases we work very closely with our colleagues in the family department.