When married couples divorce, the court has a process to consider their assets and to determine a settlement which has due regard to the positions of each party. Unmarried couples going through a relationship breakdown do not have the same protection, and one of the reasons against giving cohabitees the same protection as married couples is that getting married, or taking a decision to not marry has consequences, and this is simply one of those consequences.
If cohabitees have purchased, or shared a property, in order to be able to make a claim for a share of that property, it is necessary to establish that an interest exists. This can be done by either showing a deed or covenant which expressly states that the property will be held in shares, not necessarily equal, and that there is a provision for any subsequent division of the house, or it can be established by demonstrating a beneficial interest in the property.
Typically, there will not be a deed and so being able to show that there is a beneficial interest will be of most interest to the parties. This can be done by showing:
1. What was the intention of the parties when the house was purchased.
2. Who has contributed what. This applies to the deposit, mortgage, repairs and improvements.
Clearly, without having a document listing how both parties have approached the purchase of the property leaves the situation open to to dispute. |And dealing with this type of dispute in the Family Courts is never an ideal way to resolve them.
It is possible to draw up an Cohabitation Agreement which sets out the intentions of the parties prior to the cohabitation, and or purchase of the property. Although this type of document is not a legal certainty, it sets out the intentions of both parties and is a persuasive document to the court to show what was originally intended.
Where there is no evidence of the parties intentions prior to cohabitation, or purchase of the property, we at the Family Law Advice Centre are able to assist in making an application to the court if matters cannot be resolved amicably
