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Thomas
Thomas, Solicitor
Category: UK Family Law
Satisfied Customers: 6260
Experience:  BA (Hons), PgDip, Practising Solicitor
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Please can you help. My partner and I who have been co-habiting

Resolved Question:

Please can you help. My partner and I who have been co-habiting (not married) for about 14 years, and have three children (two of which are mine ages 4, 8). We have lived in the current house (for which we have a "joint tenancy" mortgage together for about 5 years.

She has ended our relationship and I have been trying to find out what my legal rights are to our house. Our preferred option is that we both stay in the house (as friends) until the house is sold, and then we both go our separate ways with 50% each share of the equity and she will take the kids which we have agreed I will still have regular visitation rights. Our concern is the time it may take to sell so we are exploring other options. The question is:

If I were to leave the house/move out would I lose any rights and if she decided not to sell anymore what rights would I have to force the sale and get equity out of the house? THanks.
Submitted: 3 years ago.
Category: UK Family Law
Expert:  Thomas replied 3 years ago.

Hi,

 

Thanks for your question.


The starting point if you are both jointly named is that both of your have a right of occupation which neither can deny the other unless there is a Court order to contrary pursuant to criminal or legal proceedings.

 

If you are jointly named then in the absence of a declaration of a trust declaring the precise shares there is a presumption that you each own a 50% share of the equity in the property.

 

If you move out and continue to pay your share of the mortgage repayments then the amount of yoru interest in the property will not chance and will remain presumed at 50%.The presumption can be rebutted but the burden will be on the person claiming more of the equity to show why it should differ (eg. capital improvements paid which increase the value of the property, capital repaymenst of the mortgage etc).

 

If you move out you would still be able to apply for an order for sale to realise your equity. The situation is that while the Courts are reluctant for persons to remain on registered titles to the properties complicated to an extent in that the primary consideration of the Court will be that all the children's accomodation needs are met. If it is the case that the party to have residence of the children shall be able to adequately re-house the children then an order for sale would probably be made. So you situation is dependent, to an extent, on your partner remaining willing to sell or being able to rehouse herself and the children adequately.

 

Litigating in this regard can become expensive and where possible it is generally best to settle unless the equity is very large or where one party is being wholly unreasonable in their demands.


If this is useful please kindly click accept so that I may be rewarded for my time.


You will be free to ask follow up questions.

Kind regards.

Tom

Customer: replied 3 years ago.
If i moved out the proposal is she would pay the mortgage 100% as I would have my own accommodation costs to pay and will be paying full child support maintenance (I could not also pay for mortgage even 50%). She does not work and the money she would be using to pay would be combination of savings/CSA/Other benefits.

Would this then mean I would lose my automatic 50% equity share or any other rights?

Also what is the likelihood that a court/judge would refuse the sale of the house for the benefit of the kids/family home?
Expert:  Thomas replied 3 years ago.

Hi,

 

It would not automatically mean that you lose your entitlement to 50%, but the longer she pays 100% of the mortgage repayments the more likely a judge is to order a departure from equality on this basis. Please note though that this would only happen if she disputed an order for sale OR decided she wished to claim more than 50%. Whilst she is agreeable to equality it is not a problem, so I wouldn't rock the boat.

 

The Judge would only not make an order where it can be demostrated that to make such an order would have a prejudicial effect on the children's welfare. if it can be shown that your partner would be able to re-house herself in accomodation using her share of the equity then the judge will be inclined to make an order for sale.

 

Trust this clarifies, if so please click accept.


Tom

Customer: replied 3 years ago.
Another point if I were to remain in the home paying the mortgage and she has moved out with the kids. Would I then be able to force the sale if I were unable to afford ongoing mortgage payments etc?
Expert:  Thomas replied 3 years ago.

Hi,

 

Yes, in those circumstances you would be able to force the sale of the property. It would not be a quick process if it is disputed however.

 

It's important for both of you that the mortgage repayments are met because you liability in this regard is joint and several.


Please click accept. I will continue to answer your follow up questions.

 

 

Kind regards,


Tom

Thomas, Solicitor
Category: UK Family Law
Satisfied Customers: 6260
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and 2 other UK Family Law Specialists are ready to help you

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