As a cohabiting couple, neither party will be able to claim maintenance off the other, thus, major disputes concern ownership and occupation of the home, after separation.

Jointly owned property

If you, as a cohabiting couple are joint tenants, either can apply for a court order for sale under section 14 Trusts of Land and Appointment of Trustees Act 1996 with the proceeds being equally shared; unless the joint tenancy was severed, then only a declaration of trust made between the two parties will be decisive.

If you are tenants in common and there is no declaration of trust, it will be presumed the two parties own in equal shares unless the contrary can be proved, per Stack v Dowden [2007].

Legal Estate in one name only

The presumption is that the respondent holds all the legal and equitable interest, therefore, you will need to establish a claim in equity. There are three ways to establish this:

  1. Resulting Trusts : this is established only by direct contribution to the purchase price.
  2. Constructive Trusts : you must show that there was a common intention to share ownership and that you acted in reliance on this to his detriment. This can be established by an express agreement.
  3. Proprietary Estoppel : this can be used to give ownership rights, the following elements are required: an assurance of interest in the property; reliance on the assurance; detriment suffered as a result; and it must also be unconscionable to deny relief.

John Szepietowski

Author John Szepietowski

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