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Long term occupation options for joint owning cohabiting couples

This content applies to England

Ways in which decisions can be made as to who stays in the home in the long term.

Long-term solutions that do not involve the courts

It may be possible for the joint owners to come to an agreement about each party's long-term rights to the home without involving the courts. The obvious advantage of reaching an agreement rather than using the courts is that it is likely to be quicker, cheaper and offer more flexibility. Family mediation is a way of helping families resolve disputes about children or financial matters away from the courts. It is a voluntary process where family members can meet safely in the presence of an impartial and independent family mediator to discuss disputes over finances or children. It does not aim to help people get back together, but to help them manage their future better.

See Gov.uk – Money and property when a relationship ends for more information,

When there is a relationship breakdown, cohabiting couples can make any type of agreement concerning what will happen to their home. The following are the most common types of agreement:

  • existing agreement (trusts)
  • one partner buys the other out
  • agreement to sell

Existing agreements (trusts)

It may be the case that the couple have made an agreement clarifying their intentions in the event of a relationship breakdown when they began their relationship or bought their home. This would normally be in the form of a written, signed declaration or statement or a formal trust deed prepared by a solicitor. It is possible for there to be a verbal agreement, although this will obviously be harder to prove in the event of a dispute. Examples of agreements might be for the property to be sold and the proceeds divided in specified shares, or for one partner to agree to leave the property and for the other partner and the children to remain there for a specified length of time.

One partner buys out the other

The cohabitants may agree that one of them buys the other's share in the property and becomes the sole owner. This is done by a solicitor drawing up a deed of transfer of title from the two joint owners to one of them. The partner who is to become the sole owner may need to obtain a further mortgage to pay off the other partner's share. If there is a joint mortgage already, the lender's consent has to be given to the transfer.

Both joint owners agree to sell

One of the most straightforward agreements is where the joint owners agree to sell the property and divide the proceeds. It may be possible to agree what share each partner holds in the property, and this could be related to who has contributed a greater share of the mortgage payments or put up the money for the initial deposit when the property was purchased.

The principles of resulting/implied or constructive trusts may be used to establish the shares in which the property is held. If there is any dispute about establishing and quantifying the shares, then this would have to be resolved by the courts (see the page on Establishing each joint owner's interest for details).

Court orders to decide who stays in the home in the long term

Where it is not possible for the couple to reach an agreement about the long-term future of the property, or if it is not practical to seek one in the first place, for example if there is domestic violence or one partner has disappeared, the court can make the decision.

Either cohabitant may apply for an order for sale to realise her/his financial share in the property or for an order to prevent a sale under the Trusts of Land and Appointment of Trustees Act 1996.

Cohabitants who have been engaged or who have agreed to become civil partners within the last three years can also use the Married Women's Property Act 1882.

For couples with children, either partner may apply for a transfer of ownership in the interests of a child under the Children Act 1989.

Trusts of Land and Appointment of Trustees Act

If one of the joint owners wants to sell the property then, whether the joint owners are beneficial joint tenants or tenants in common, the written consent is needed of the other owner. If no consent is given, or the other party has disappeared, then an application can be made to the court for a declaration of interests and an order directing or preventing sale. The application is made in the county court or the High Court under section 14 of the Trusts of Land and Appointment of Trustees Act 1996.

The court's powers are broad and extend to ordering an immediate sale or postponing a sale. For example, it might make an order for the property to be sold when the children reach 18, when one partner dies, or after a certain period of time. When deciding whether to make an order under the Trusts of Land and Appointment of Trustees Act 1996, the court must consider the:

  • intentions of the person(s) who created the trust
  • purpose for which the property is held
  • welfare of any child under 18 who occupies the home or might reasonably be expected to do so
  • interests of any secured creditor, eg a lender

The court must also consider whether the original purpose for which the home was bought still exists, for example if it was to provide a family home for both the parents and the children for an indefinite period.[1] Where the original trust still exists, the court will not make an order that defeats it. The court cannot change property rights, ie adjust the amount or nature of each partner's beneficial interest.

Married Women's Property Act

Cohabitants who have been engaged in the last three years can use the Married Women's Property Act 1882 to obtain an order concerning the home from the Family Court. This is a summary procedure (ie the judge may make whatever order s/he thinks fit in respect of disputed property), but the principles on which her/his decision is based are still the principles of property law. There are similar provisions after a civil partnership agreement in the Civil Partnership Act 2004.

This procedure is usually quicker and can have significant advantages in terms of costs (see the section on Costs and public funding for more information about legal aid and costs).

Children Act transfers

A cohabitant who is parent or guardian of a child or children may apply for a transfer of property from the child's parent. The Family Court can order a property transfer to a child, or to the parent or guardian caring for the child, if it is for the benefit of that child (or children).[2] Property can also be settled for the benefit of the child, for example the family home may be kept for one partner's use until the children are 18, when it could be sold.

Given that children cannot legally own property, the order will presumably provide for transfer to a parent or guardian, or to trustees under a settlement.

The court must consider the following factors:

  • income, earning capacity, property and other financial resources of both parties now and in the foreseeable future
  • financial needs, obligations and responsibilities of both parties now and in the foreseeable future
  • income, earning capacity, property and financial resources of the child
  • any physical or mental disability of the child
  • the manner in which the child was being, or was expected to be, educated or trained[3]

As the transfer is meant to be solely for the child's benefit, the court must not consider matters that specifically relate to the parents' relationship, eg the length of their relationship or their age. As this is family law, rather than property law, the court can change existing property rights or grant a right where one did not exist, ie they can adjust the amount or nature of each partner's beneficial interest.

Applications for a property transfer

Applications for property transfer orders may be made by a parent or guardian of a child or by anyone in whose favour a residence order is in force with respect to a child, but only the natural biological parents of the child are subject to the orders.

Courts' powers to transfer owner-occupied property

This provision is still relatively little used, so that it is not yet clear how it is working in practice. As the property settlement is intended to be for the benefit of the child rather than the partner, it may be that the courts are unwilling to order outright transfers of valuable property from one parent to another if this results in a disproportionate benefit to one partner.

The courts are more likely to make orders granting rights to occupy the home until a child reaches a certain age, after which the property may be sold.

[1] Re Evers's Trust [1980] 3 All ER 399.

[2] s.15 and Sch.1 Children Act 1989.

[3] para 4, Sch.1 Children Act 1989.

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