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The law on relationship breakdown

This content applies to England & Wales

Overview of the legislation covering relationship breakdown issues.

For married couples and civil partners experiencing a relationship breakdown who are joint owners, the relevant law is a combination of matrimonial/family and property law. Most disputes over property are resolved through matrimonial/family law because of the wide discretion available to the court. Property law principles are normally relied on when matrimonial law cannot apply, for example, where there is no divorce or judicial separation, or one party has remarried without any property settlement being made. The different ways in which this legislation works are explained below.

Matrimonial/family law

The statutes that govern the action that can be taken by married joint owners and their spouses in relation to the matrimonial home are the Matrimonial Causes Act 1973 and the Family Law Act 1996. The Children Act 1989 may also be relevant if there are children. The Matrimonial Causes Act gives the courts wide powers to decide who gets what in the long term in financial and property terms. It can make an order for transfer of property from one spouse to another in conjunction with proceedings for divorce, judicial separation or nullity. Applications for property adjustment orders and/or financial provision are normally made in the county court. On 5 December 2005, the Civil Partnership Act 2004 came into force, allowing applicants of the same sex to apply for civil partnerships. On termination of the partnership, the parties will have the same rights to financial relief as married couples on divorce provided for in the Matrimonial Causes Act 1973.

The Family Law Act gives married couples the right to apply for an occupation order of the matrimonial home. It also allows the courts (county court or High Court) to order a transfer of liabilities in respect of a matrimonial home owned jointly by the spouses, and order a transfer of property from joint spouses to one spouse. These rights have been extended by the Civil Partnership Act 2004 to include same-sex couples.

Property law

Property law explains the legal position of joint owners in relation to their interest in the home. Using property law principles, courts can establish what interests are held in the home, but they cannot transfer or redistribute those interests. Of particular relevance to relationship breakdown is the Trusts of Land and Appointment of Trustees Act 1996. Where family law applies, it can override property law rights.

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