I have lived with my partner for a number of years. When do I become his common-law wife?
Answer
"The common-law wife" is a myth. At no stage during a relationship do you become a common-law wife and financial matters between partners are strictly determined by Property Law and if there are children involved, The Children Act.
You do not automatically obtain rights by virtue of living with somebody for a number of years.
Question
If I want to separate from my partner what do I do?
Answer
You need do no more than physically separate and then look at whether there are any assets to be divided.
Question
My partner has supported me for a number of years while I have looked after the children. Can I obtain financial support from him or her?
Answer
You cannot obtain financial support for yourself but you can apply to the Child Support Agency for child maintenance. Alternatively, you can agree between yourselves that your partner will pay you a fixed amount each month in respect of child maintenance and so not involve the Child Support Agency unless either of you is on benefits when the CSA will pursue the absent parent automatically. You may also be able to make an application under the Children Act depending on the circumstances of your case.
Question
The family home is in my partner's sole name but I have contributed towards the mortgage throughout the years that we have lived together. Do I have an interest in the property?
Answer
If the property is in one name only the most important first step to take is to protect your possible interest by registering a Restriction to stop your partner selling the property without your knowledge. One then has to look at Property Law and Trust Law to establish whether you have an interest in the property. There are various types of Trusts under which you can establish an interest. It is a very complex area of law and it you think that you have an interest in a property because you have contributed in some way or a promise has been made to you that you will be entitled to a share of a property you should seek legal advice to establish whether you fall within one of the Trusts and as such, can establish an interest. For example, if you have paid towards the deposit on a property but the property was not put into your name you may have an interest under a resulting Trust. Alternatively, if there was an agreement that you would have an interest in the property and you subsequently paid directly towards the mortgage but again the property was not in your name, you stil may have an interest in the property.
Question
The property is in our joint names but I want the property to be sold. Is there anything I can do?
Answer
If the reason you bought the property has now come to an end i.e. you purchased it for a family home then you can' apply to the Court for an Order that the property be sold.
Question
The property is in our joint names. Does that mean I am automatically entitled to half of the property?
Answer
This will depend upon whether you hold the property as Joint Tenants under which you both hold the property equally or Tenants in Common. If you hold the property as Tenants in Common then you may hold it in unequal shares and a Declaration of Trust should have been prepared when the conveyancing transaction was completed. If you hold the property as Tenants in Common but there is no Declaration of Trust then your Solicitor will have to look at the parties contributions, mortgage repayments and prepare a detailed calculation as to your interest in the property.
Question
If I have children can I apply for anything other than child maintenance through the CSA?
Answer
You may be able to make an application under Schedule 1 of the Children Act for lump sums or other financial orders and this would depend on all of the circumstances in your case, in rare circumstances you may be able to apply to remain in the property for the benefit of the child.
Question
How do we divide up the contents of the family home?
Answer
If you cannot agree the division of the contents then you can make an application to the Court for a declaration as to beneficial interest in the property but the courts do not usually like dealing with this type of application.
Question
Will there be any changes in the future?
Answer
The area certainly needs reform and it is very uncertain, for co-habitees at this time. There have been various papers published on reform in this area but no new laws have been brought into force to date. If you want to regulate the way in which you share a property with your property you should enter into a co-habitation agreement.
Property rights for co-habitees following the court of appeal case of Oxley and Hiscock
I acted for Elayne Oxley in the much-publicised case of Oxley and Hiscock. Mrs Oxley had lived with her partner for 16 years and had made a financial contribution of 22% of the initial purchase price of the home that she shared with her partner Mr Hiscock. The Court of Appeal decided that as Mrs Oxley had established an interest in the property that they could then look at the whole course of dealings between them and decide what would be a fair share for each. Mrs Oxley was awarded 40 % of the property.
This case has taken the law forward in as much as the Courts can now decide what is a fair share for each party rather than being restricted to the amount initially contributed towards the purchase price. However, the Common Law Wife is still a myth. The co-habitee will only acquire an interest in a property:-
- If the legal owner of the property makes promises to them.
- By making a direct financial contribution towards the purchase price of the property.
- By making direct payments towards the mortgage. A co-habitee will not acquire an interest in the property merely by living in the property with their partner and contributing towards the bills and food.
Expensive litigation can be avoided if the parties take legal advice prior to purchasing a property as their respective shares can be considered and recorded
at that time by way of a Declaration of Trust. If the partners have children together then the partner with care of the children may be in a position to make an application to the Court under the Children Act to provide housing for the person with care of the children until the children have reached their majority. However, they will not establish a legal interest in the property under the Children Act. Under the Civil Partnership Act gay couples can acquire the same rights as married couples if they register their partnership. However, heterosexual co-habitees can only acquire an interest in a property through strict property law and the Courts.
The professional organisations are in the process of drafting proposals to put to the government to make the situation fairer for heterosexual co-habitees. However, in the meantime it is for co-habitees to ensure that their interests in the property are recorded correctly at the time of purchase to avoid costly disputes at a later date. The Oxley case is a step forward for those partners who choose to live together rather than marry. However, much needs to be done to ensure that co-habitees acquire equal rights to those that choose to marry.
