We were not going to feature in our “A Journey through Separation” series but then we thought that our listeners may want to receive our top tips and a bit about the work we do in supporting our clients through challenging times.  We also talk a bit about what we feel makes us different to other law firms and how we work with our clients.

What is a cohabitation agreement and why may it be useful for me to have one?

A Cohabitation Agreement is a written document that sets out the parties’ intentions and states that they wish to be bound by its terms. It is designed to make parties think about their financial positions and their wishes before any dispute arises. The Cohabitation Agreement sets out the intentions of the parties and can cover off how property is held, contributions to household expenses. It can also cover bank accounts, debts, personal possessions, cars, etc.  It is an agreement that can be very detailed and comprehensive.  The agreement can be tailored to meet your needs.

We talked about how a Cohabitation Agreement can also be entered into after you have purchased a property or moved in together provided you are both in agreement.  We can only act for one party rather than you both as a couple.

How can I protect myself if I am buying a property with someone and I am unmarried?

As well as having a Cohabitation Agreement in place you may decide to enter into a Declaration of Trust.   A Declaration of Trust may show different percentages for ownership or ringfencing an initial deposit and the property would be held as tenants in common rather than as joint tenants.  If you hold the property as joint tenants your share passes by way of survivorship to the co-owner.  When you prepare a Declaration of Trust, you hold the property as tenants in common so that your share detailed within the Declaration of Trust passes to your Estate in accordance with your wishes rather than by way of survivorship.

What can I do if I separate from someone but we co-own a property?

As a joint owner you would be entitled to force an order for sale but we try to work with our clients and their former partners to try to reach an agreement.  It may be that the person wanting to remain in the family home can remortgage and secure enough funds to buy out their former partner’s share.  A transfer of equity can take place and a separation agreement can be entered into.  Alternatively, it may be that the property has to be sold but there is an agreement to do this at a later stage and again we can assist with drafting the relevant provisions within a separation agreement.

What is ToLATA and what does a claim under ToLATA look like?

There are two main types of disputes between unmarried couples and property:

1. Sole name cases where one party owns the legal title in their sole name but the other party is claiming that they contributed in some way and therefore hold a beneficial interest and/or that there was an intention that the property would always be joint but for some reason on purchase they were not named on the title deeds to the property. We will advise you as to whether you have any possibility of bringing a claim under Trusts of Land and Appointment of Trustees Act 1996 (“ToLATA”) for your own interest in the property. The starting point is that if the property is not in your name then you have no legal interest. There are no automatic rights for cohabitants regardless of whether you have children or not. We would advise you as to whether you have an option to bring a claim for an interest in the property based on principles of resulting trust, common intention constructive trust or proprietary estoppel. These are complex legal arguments but they are centred around the discussions and understanding the parties’ intentions at the time of purchase and during cohabitation alongside the contributions made by each party. The onus would be on you to prove your case.
2. Jointly owned property (whether that’s as tenants in common in equal or unequal shares or as joint tenants) and often in these types of claims, one party is arguing that over the course of time there has been a change to the beneficial ownership of the property. For instance, the property could have been purchased jointly but one party then invested significant sums into the property to renovate it or build an extension and they could argue that there was an agreement that their beneficial ownership increased.

The position with regard to costs is that the loser pays the winners costs as these claims are dealt with by the Civil Procedure Rules.  It is therefore important to instruct someone who has specialist knowledge of claims dealt with by Civil Courts and governed by the Civil Procedure Rules.  Even though these claims look like family claims they are not dealt with by family Courts and Family Procedure Rules do not apply.

What is a schedule 1 Children Act 1989 case?

This would be an application on behalf of the child for financial provision. The Court has power to order a lump sum payment, periodical payments (maintenance for the child/ren) or a property adjustment order. Orders under the Children Act 1989 are usually temporary until the child reaches a certain age.  At Roskilly & Mills we are very experienced in dealing with these claims as they often run alongside a ToLATA claim. The court will consider a number of factors when making their decision however the parties’ financial circumstances and the housing needs of the children are paramount 

Why is Roskilly & Mills different to other law firms?

We have not internal fee targets and so whilst we have to record our time we do not have the pressure of having to hit a certain amount of matter related hours a day as is the case in many other law firms.  This allows us to focus on the client and to, for instance, giving people with new enquiries the time they need and deserve to allow us to help support them.

We are client focused and think outside of the box which means we collaborate with others who we think our client’s may find helpful.

We are not family lawyers because our background is specifically dealing with unmarried couple disputes and will and inheritance disputes therefore our knowledge and expertise falls specifically within these areas.

Roskilly & Mills specialise in advising unmarried couples.  We work with other professionals collaboratively to support our clients. We are aware of the difficulties our client’s face when going through separation and we provide a supportive and empathetic approach when advising our clients at what can be a very difficult time in their lives.