One of the most important concerns that anyone who is going through a breakup will have, is the home. Will one partner be able to keep their property, or will they have to sell it? Who will receive the proceeds if it’s sold? What happens if a couple disagrees?
What happens when a couple gets married?
The answer to this question will depend on whether a couple is married or has a civil union. In the case of conflict, a spouse or civil partnership can approach the Family Court. The Family Court is able to exercise a wide range of powers. The Family Court can assign ownership to one party or another (the legal title of the property may not matter). If appropriate, it may order the sale of the estate and decide on the division of proceeds. For Family Law Solicitors Gloucester, visit //deeandgriffin.co.uk/personal-legal-services/family-law-solicitors/gloucester
What would happen if the couple were living together?
It is a different situation for any couples who have not been married, or are in a civil union. They must apply to Chancery Court instead of the Family Court if they can’t agree what to do with their home.
Property ownership types
There are two kinds of ownership – legal and beneficial. Beneficial ownership is when a property owner has the right to receive the full value. This is different from the legal owner, whose name appears on the title. The Chancery Court will always start by checking whose name appears on the title. It is assumed that this person is also the beneficial owner, but it’s not always true.
If there is only one owner of the property, the beneficial non-owner can show that he or she has an ownership interest if they can demonstrate that the owner of the property holds it on their behalf. This is often done by referring to an explicit declaration of trust. In the absence of a trust deed, the non-legal owners can still prove a constructive “common intent” trust if they can show that the parties both intended that the non-legal owner be entitled to benefit from the property. The property was held in trust by the parties for the benefit of the other party.
When both partners are jointly legal owners, they will be presumed to have equal ownership. The burden of proof falls on the party who wants to claim a share greater than 50%.
A declaration of trust is usually conclusive in most situations and determines the outcome. When the couple purchased the property, or when they transferred the ownership to their names jointly, it is ideal that they specified in writing whether or not they wanted to be joint beneficial tenants, which would mean they were joint owners with automatic transfer of equity to each other upon the first death, or tenants in common, meaning they owned their respective shares of equity.