26/04/2007

Bradford’s co-habitees must decide how to divide home following ruling, says law firm Gordons

Bradford’s unmarried couples who intend to buy property together are being urged to decide in advance how their home should be divided if they separate following a landmark court case earlier this week.

In that case the highest court in the land – the House of Lords – ruled that unless co-habitees specify otherwise, the courts begin with the assumption that a jointly owned property will be divided equally, or a solely owned property will remain with the person named as the owner. That might not be what the parties intended, especially if the majority of the purchase price was provided by one of the parties.

Adrian Clossick, family law solicitor at Bradford-based Gordons, said: “The appeal case at the House of Lords – known as Stack v Dowden – involved a couple that, crucially, when purchasing a property simply transferred into joint names without any further agreement being recorded as to the proportions in which they owned the property.”

More than two million unmarried couples were recorded by the 2001 census, and the proportion of cohabiting couples is estimated to rise from the present one in six over the next 25 years to one in four, largely because of rising house prices.

Adrian continued: “There is a popular misconception in this country that by living with someone outside of wedlock that you in some way acquire rights against them. This is often referred to as “common law marriage”. It is a fact that common law marriage is not a concept recognised in English law.

“The effect of this is that unless a couple have adequately recorded what is to happen to any joint property in the event of relationship breakdown, there is no cut and dried answer as to how that joint property will be divided between them.

“The most salient point to be drawn from this judgment is the need for couples, whether upon purchasing a property or simply moving in with each other, to agree how any joint property is to be held to and agree what will happen to it in the event of relationship breakdown.

“Crucially, this agreement should be recorded in a legal document known as a Declaration of Trust. Co-habitees throughout the city and surrounding areas should not rely on the law to provide them with a safety net in the event of their relationship breaking down. This case adds little to what is simple advice; declare your intentions or beware of the consequences”.

If you would like further information please contact Mark Christie at mark.christie@gordonsllp.com