Q. I bought my house nine years ago with my partner but we split up five years later. I now want to sell it but my ex-partner says he is entitled to 50 per cent of the sale even though he has not contributed a penny towards the mortgage in the last four years. What is he entitled to?
You could have avoided this dispute by taking proper legal advice either when you set up home together or when you separated. So often arrangements between couples are founded on “trust” and there is a reluctance to incur legal fees in documenting transactions. However, it is usually in the interests of all parties that steps are taken to avoid the potential for costly litigation further down the line.
Ideally, you should have tried to come to an arrangement with your partner to transfer the property into your sole name when you split up and agreed what amount of money he was entitled to for his share of the property at that point. Perhaps, financially, you were not in a position to do this.
So what can you do now? Where the property is jointly owned, there will be a presumption of joint beneficial ownership unless there is an express declaration otherwise. In joint names cases, the presumption is difficult to rebut but it can be done by demonstrating that the parties had a different common intention as to their share of the property, either at the time the property was bought or later.
The case of Kernott v Jones decided by the Supreme Court in November 2011 upheld an earlier decision that joint owner Mr Kernott was entitled to only 10 per cent of the property, based upon the parties’ common intention changing following their separation. This decision has been welcomed by family lawyers because it gives more clarity about property division for those living together.
As a law firm, we see many cases such as yours. The good news for you is that there is a growing willingness of the courts to get away from the rigidity of the default position of 50/50 and to use powers to adjust property shares based on evidence of what must havebeen intended by people’s conduct after the acquisition of the property.
It is always difficult to find good evidence to make this apportionment because ‘what happens if it goes wrong’ is usually a million miles away from what the parties are thinking about when they are ‘starry- eyed’ about a ‘permanent’ relationship. This is why there are good reasons to get advice both before you set up home with someone and/or at the time of a break up because things might not be quite as you think.
For further information contact Suzy Hamshaw on 01488 682506 or email@example.com
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