Where joint owners are not married, on the breakdown of their relationship both parties’ claims against the other will be very limited. The courts do not have any discretionary powers to redistribute assets, and in most cases, the parties can only rely on claims under laws governing the ownership of property, namely, Trusts of Land and the Appointment of Trustees Act 1996 (ToLATA). The starting point will be the legal ownership of any property.
In such cases, a Deed of Trust will likely be conclusive when determining how the property is held (and therefore what should happen at the end of the relationship). For more information on this, you can check out our FAQs section on our Financial Claims for Unmarried Couples page.
If you are unmarried and are in the process of purchasing a property in joint names, it is imperative that you take legal advice in respect of a Deed of Trust to ensure that you are accurately recording your intentions in respect of ownership.
Married / Civil partnered joint-owners
When a marriage or civil partnership breaks down, the courts have wide and discretionary powers to distribute matrimonial assets between parties. Little weight is placed on whose name any assets are held in, and the court will consider all the circumstances of the case (e.g. the length of the marriage, the parties’ respective needs and resources) and strive towards fairness. You can find out more information on how the courts decide who gets what on divorce in our previous article.
Whilst a Deed of Trust could be considered as part of the circumstances of the case, the court will be in no way bound by this and can (and frequently do) redistribute assets. Indeed, if it is a property purchased during the marriage, and if this was lived in as the family home, there will be strong presumption that this should be divided equally. A Deed of Trust will therefore have little to no impact on the overall outcome.
The best thing that can be done to try and protect an asset from being shared equally (or at all), is to enter into a nuptial agreement (either before you get married, i.e. a prenuptial agreement, or after you are married, i.e. a postnuptial agreement). Whilst such agreements are not yet binding in the UK, if they comply with current guidance, the court will most likely uphold this.
How can our family & divorce solicitors help you?
Our team at Hanne & Co are specialists in pre and post nuptial agreements and are able to assist in tailoring your agreement in line with your individual circumstances and wishes. Contact us today by calling +44 (0) 207 228 0017 or by filling out the form below.