Cohabitation - Family Law

Cohabitation 1) Is the couple married? Yes Matrimonial Causes Act (MCA) 1973 applies No 2) Has the couple entered into a Cohabitation Agreement? Yes This establishes agreements while the couple are living together as well as establishing right on the breakdown of the relationship * These are not contrary to public policy - Sutton v Mischon de Reya & Gower No 3) Is there any legislation that specifically covers the breakdown of cohabitation? No - There are no specific rights for an unmarried couple and disputes are governed by the rights and legislation specific to the matter in dispute 4) What disputes commonly arise between cohabitees on separation? 1) Property ownership and occupation of the home 2) Financial provision between the parties and for the children 3) Children Act 1989 disputes 4) Protection from domestic abuse 5) Property ownership and occupation of the home 1) What provisions govern ownership of property for cohabitants? 2) Is the legal ownership of the property in the names of both cohabitees? No Property will be dealt with on the basis of pure property law principles similar to any other form of joint ownership ? In particular the Trust of Land and Appointment of Trustees Act 1996 (TLATA) Yes a) How is the legal ownership held? Will always be held as joint tenancy b) How is the beneficial ownership held? a) Can be held as joint tenancy or tenancy in common b) Check the title deeds by requesting the official copy entries of the register to see if held as JT or TiC c) What are the consequences of the property being held as JT or TiC? Joint Tenancy * The parties both equally own all the equity * Would be advised to sever on breakdown by serving a notice on the other joint tenant * Property would then be held as TiC * Would need to alter will to take account of this Tenants in Common * The parties will own a defined share of the equity in a property d) Is there an agreement as to how the beneficial interest in the property will be shared? No e) Apply the court decisions on how the property should be split * Does not apply to property held as JTs * Applies if property held as TiCs where the parties haven't agreed on how is divided * Applies if was held as JTs but now severed so is held as TiC Yes This is a trust deed and will be decisive as to how the equity will be split. This must be: - s.53(1) LPA 1925 a) In writing; and b) Signed by both parties Stack v Dowden a) Starting points: 1 legal owner ? Starting point for beneficial ownership will be that the one owner receives 100% of the proceeds 2 legal owners ? Start point for beneficial ownership is 50-50 split b) The court will then ask "In which way did the parties intend their beneficial interest to be different from their legal interest"? Kernott v Jones Stated that the approach where property is in two names should be as follows: 1) If a home is bought in joint names, it is presumed the parties hold the beneficial interest as joint tenants so starting point will be 50-50 2 A party can rebut this presumption of 50-50 by providing evidence that the parties' common intention was different either at the time of purchase or later 3) Common intention should be objectively inferred from the conduct and dealings between the parties 4) Where the parties have changed their original intention and it isn't possible to infer their actual intention at present, the court can impute a share that the court considers fair having regard to the whole court of dealing between the parties 5) Financial contribution by the parties to the property are relevant but the court can also take into account other factors in deciding what shares were intended or are fair