Divorce and seperation - Who gets the apartment?

If your name is not on the title deeds- don’t panic!! You will still have matrimonial rights in the property. If you made significant contributions towards the flat such as towards the initial purchase price or mortgage repayments, the Courts may find that you have a financial claim related to the amount you invested in the flat.

The first thing you need to do is instruct a solicitor to register your interest in the flat. Your solicitor will ask the Land Registry to put a Notice on the Land Register which has the effect of warning potential buyers that you have an interest. This will stop your partner from being able to sell the flat, and allow your solicitor time to apply to the Courts to decide what should happen to the flat and its proceeds.

When the Courts decide what should happen to the matrimonial home a number of factors are taken into account. These include the age of the parties, the duration of the marriage, children, the income and earning capacity of both parties, their financial needs and obligations, their standard of life enjoyed before the separation, any disabilities they may have, and other assets one party would loose on separation such as the benefit of a pension. Once the Court has taken all relevant factors into account there are a three main types of order it can make.

First, the Court can order that there should be an immediate sale of the property and that the sale proceeds are to be divided between the parties as the Court provides. Second, the Court can order that the property be transferred to either the husband or the wife. This often means that the spouse who retains the property has to pay compensation to the other immediately or from the proceeds when the flat is sold in the future.Third, where there are children under the age of 18 the Court can order that any sale of the flat is postponed until the children come of age, and upon that event the flat be sold and the proceeds divided in equal proportion.
What about unmarried Couples?

Contrary to common belief there is no such thing as a common law husband or wife in this country. Therefore even if you have been living with your partner for years, the law will not protect you in the same way as if you were married...

So if you separated, who gets the property?

Of course if the split was amicable you could come to an agreement between yourselves, whether it be to sell up and split the proceeds, or for one partner to buy the other out. But if you part on bad terms you will need to be able to prove that you are legally entitled to a share in the flat in order to have any say.

This can shown if you contributed to the original purchase price of the flat. The percentage of your contribution could represent the interest you now have. For example, if you put in a quarter of the monies towards buying the property, you could be entitled to a quarter interest now.

If, however, you did not put in any money from the start, you will need to satisfy the Court that you and your partner had always agreed that the flat was to be jointly owned, or that you were to have a share. This could be proved by other contributions to the flat which you made on the basis that you would have an interest in the flat, such as paying towards the mortgage, paying for building works or decoration of the flat. The contributions will have to be significant and should relate to the flat itself and not just the contents.

Although when you first move in together with your partner the last thing you will be thinking about is separating, the best action for cohabitees is to protect their interests from the outset. If you are buying a flat make sure that the flat is put into joint names, or stipulate what share each should get. It can be 50/50 or 20/80 whatever you agree, and you can consult a solicitor to draw up a legally binding agreement which sets out what share each partner should get.

Desmond Taylor is a Partner in Graham Harvey Solicitors. If you would like him to answer any legal queries you may have then email him at dtaylor@graham-harvey.co.uk and he will answer as many questions as he can in forthcoming issues.