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Solutions involving the courts

This content applies to England & Wales

Various orders the court can make to decide who stays in the home in the long term.

Where it is not possible for the couple to reach an agreement, or if it is not practical to seek one in the first place, for example if there is domestic violence or the owning partner has disappeared, then, nevertheless, the non-owning cohabitant may be able to claim long-term rights to the home if s/he has a beneficial interest or there are children. The non-owning cohabitant with a beneficial interest 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 in the last three years can also use the Married Women's Property Act 1882, and there are similar provisions after a civil partnership agreement in the Civil Partnership Act 2004. For couples with children, the non-owning cohabitant 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

Where there is a sole owner and a non-owning cohabitant with a beneficial interest, either party can make an application 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. 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
  • the purpose for which the property is held
  • the welfare of any child under the age of 18 who occupies the home or might reasonably be expected to do so
  • the 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 adjust property rights, ie give a beneficial interest where one does not already exist or adjust the amount of the 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, as the Legal Aid board has the discretion to postpone recovery of the statutory charge on dwelling houses, and there is a £3,000 exemption from the statutory charge on any money or property recovered. This exemption does not apply where the Trusts of Land and Appointment of Trustees Act 1996 is used (see the section on Costs and public funding for more information about legal aid and costs).

Children Act transfers

A cohabitant who is a parent or guardian of a child or children may apply for a transfer of property from the child's other parent. The Family Court can order a property transfer to a child or to the parent 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 learning 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 courts 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' use of 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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