Division of Property on Breakdown of Relationship
When couples who are not married or in a civil partnership separate, the most common issues which arise relate to occupation and ownership of the family home, childcare arrangements, and the parties’ financial obligations and responsibilities towards each other and the children of the family.
As there is no single piece of legislation which deals with relationship breakdown, it can be very confusing for people to know and understand their rights and responsibilities. Couples who are not married or in a civil partnership do not have the same rights as those who are married or in a civil partnership. The concept of a “common law” spouse is a myth.
If you are separated from your partner to whom you are not married or in a civil relationship, you do not have to take any legal action to separate; you can simply separate. If you have assets though, you may wish to consider having a formal agreement setting out how you have agreed to divide those assets. This formal agreement is called a Separation Agreement. Such agreements typically include terms about who will live in the family home, how and when the equity in the family home will be divided and how other assets will be divided, such as bank accounts, holiday homes, other properties etc. It is always best to try to reach an agreement directly with your partner. However, if this is not a realistic option, you can jointly instruct a mediator to assist you (assuming there is no domestic abuse). If mediation does not work, you can instruct solicitors.
If agreement is simply not possible, either of you can issue court proceedings in the Civil Court under ToLATA. However, the court’s powers are limited to determining your respective shares in a property and ordering a sale of the property. The court does not have the power to order a transfer of property. ToLATA proceedings are lengthy and expensive and often result in competing claims being made under Schedule 1 of the Children Act 1989 which complicates matters further.
If you and your former partner jointly own the family home, you both have the right to occupy that property. You cannot exclude each other from it unless you obtain a Court Order. These orders are usually obtained by one partner against the other in the event of domestic abuse. If you are not the sole or joint owner of the family home, you may have very limited rights to occupy the family home and may well have to establish a financial interest in it to secure the right to occupy it.
In most cases there is no legal obligation to financially support your former partner on separation. Child maintenance, if not agreed between you, is dealt with by the Child Maintenance Service. In some circumstances though you may be able to apply to the court for financial support for yourself and the children of the family.
The number of couples choosing to live together without marrying or entering a civil partnership has dramatically increased in recent years however, it is still a common public misconception that those couples have the same rights as couples who are married or in a civil partnership. They do not. This area of law is very complex, so it is always best to obtain legal advice before or shortly after a separation. The right legal advice can often help you understand your position better, which leads to more constructive discussions with your partner thereby increasing the possibility of reaching an out-of-court settlement.