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27 Living Together and Your Rights if You Separate

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1 Introduction

2. How is living together different from being married?

3. Setting up home

4. Making a ´living-together agreement´

5. When you are living together

6. If you or your partner dies

7. State benefits for people living together

8. Tax matters

9. Pensions

10. If you split up

11. Arrangements if you have children

12. Sorting out the home

Sorting out your rights in the family home is more difficult than for a married couple. The court has more limited powers to change property interests to achieve a fair result. You have to rely on what you have agreed together and the contributions you have both made to the home. It can often be hard to prove what you have both said and done in the past. The broad principles that will influence the strength of your claim are set out below.

If your home is in joint names
If you bought the house together and put it in both your names, you must first look at what you agreed then. If you agreed the shares that you would both have, you are generally bound by what you agreed.

However, you may not have discussed in detail how you would share the property. You will probably have to prove what contributions to the home you have made while you have lived together if:

  • there was no proper agreement when you bought the property; or
  • the agreement made when you bought the property is unclear or has been changed

If you can’t agree, you will need expert legal advice about how to deal with the ownership.

If you continue to own the property as joint tenants after your separation, you might want to change the nature of the joint ownership, and make (or change) your will, particularly if you have children, so that your partner does not automatically get the property if you die.

If your home is in the name of one partner
On the face of it, if you’re not the owner then you have no interest in the home, but you may be able to make a claim to the court for a share. You can do this if one of the following applies to you:

  • You both agreed that you would share the ownership of the home, and helped pay for it, even though it was not in both your names. That agreement could be written or verbal.
  • You made no agreement, but you believed that you would have an interest in the home and made a financial contribution towards buying it. In this case, the owner generally has to have acted in a way that made you believe they intended to share the property.
  • You relied on a promise by the owner to share the home, and you gave up a financial advantage (such as a job or property of your own) to come and share it. You must also have made contributions to the home.

A contribution could be a payment towards the original cost, or direct or indirect contributions towards the mortgage payments or improvements.

If you rent your home
If you are joint tenants of a rented property and one of you leaves, the other person can stay in it, but both of you will be liable (responsible) for the whole rent.

A fixed-term joint tenancy can be ended only if you both agree to this and your landlord is willing to end the tenancy. If you have a ‘periodic’ tenancy (one that has no end date, but continues from week to week or month to month), either of you can give the landlord notice to quit. If you and your partner cannot agree about the tenancy, you may need to get an injunction from the court quickly to prevent your partner giving notice, which would end the tenancy and leave you homeless.

You can also ask the court for an order to transfer the tenancy to you – see ‘Applying to the court to transfer a tenancy’.

If one of you rents the home
The person who is the tenant has the right to stay in the property. If you are not the tenant, your only protection is to apply to the court for an order allowing you ‘occupation’ of the property and, ultimately, transferring the tenancy to you. If you want to swap the tenancy to the other person, you will need your landlord’s agreement first.

If you have a secure tenancy (which may be the case if you rent from the local council) and you and your partner have lived together for the last 12 months, the person who is the tenant can ‘assign’ (pass on) the tenancy to their partner, if that partner is going to stay in the home. However, the local council will have to agree to this.

Applying to the court to transfer a tenancy
Under the Family Law Act 1996 you can apply to the court for an order transferring a tenancy, either from joint names to one person’s name, or from the person who is the tenant to their partner (the non-tenant). You would have to explain why the transfer would be fairer to you both. The most obvious reason would be that the person who asks for the transfer needs to stay in the home because it will be a home for him or her and their children.

If you apply for a transfer, it is important to make sure that your partner does not stop it by giving a notice to quit that ends the tenancy. Once a tenancy has been ended the court cannot order a transfer. You can ask your partner for an undertaking (a promise) that they will not give notice to quit. If they refuse to do this, you can ask the court for an injunction to prevent them giving notice.

While you wait for the final hearing of your application for a transfer, or while you decide whether to go ahead with an application, you can apply for an occupation order, which gives you the right to stay at the home in the same way as if you were married to your partner, the tenant. You will have to show the court that it would be more harmful for you to move out than to stay in the property. If there is a problem with violence in your relationship, you can get an order under the Family Law Act to say your former partner must not come to the home.

If you don’t want to stay in the home, or you would not feel safe there, you could consider applying to the local council for accommodation as a homeless person. However, the council would probably give you accommodation in this way only if it considered you ‘in priority need’. For more about this, see the Gurkha Free Legal Advice leaflet ‘Losing Your Home’.

If you have children
You may also be able to bring a claim on behalf of the children, under Schedule 1 of the Children Act 1989. This could mean that the home owned by one partner cannot be sold until the children have finished their education. But it won’t normally mean that the property will be transferred to the children or the carer of the children. The property passes back to the original owner when the children finish their education or become independent.

13. Sorting out other items you own

14. Dealing with emergencies

15. Terms used in matters to do with living together

16. Further help

17. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law and are not intended to be a guide to how the law will apply to you or to any specific situation. The leaflets are regularly updated but the law may have changed since this was printed, so information in it may be incorrect or out of date.

If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: January 2009

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