The process of dividing up the assets and debts who gets the house?

When a couple are married and the relationship ends, matrimonial legislation allows the Courts to deal with the financial arrangements; ie to make decisions as to what should happen to property and whether maintenance should be paid. The Court has a wide discretion in realtion to married couples and takes into account various factors to try and ensure overall fairness.

Where a couple are living together (cohabiting), however, and the relationship ends, there is no legal provision for maintenance. Neither, in relation to the division of the couple`s property, is there any immediate notion of fairness or reasonableness built into the law.

Sometimes property is jointly owned and the deeds are in both the partners` names (see further below). If this is not the case, being awarded a share in any property depends on being able to establish ownership, either based on a `financial contribution` or a `common intention`.

So for example, if a woman lives with her partner for 20 years and brings up their children in his house, she cannot expect any maintenance for herself. Nor will she share in the property if she has not paid for it either directly or, for example, by making a contribution to the mortgage, unless she can prove it was agreed otherwise. It does not matter that the reason she did not contribute financially was that she could not work because she had to be at home with the children. Even if she did make some financial contribution, establishing ownership can be difficult as the law in this area is not entirely clear. This lack of legal provision upon separation can come as a shock to some unmarried couples who have been living under the false belief that they have become `common law` spouses.

It is important to note, however, that whilst unmarried partners have no financial liability towards each other in terms of income, the parent with whom the children do not live will always be liable to maintain them financially.

With regard to property and other capital assets, however, the basic principle with cohabitees, (unlike with marriage where the yardstick as to division of all property regardless of how owned, is a 50/50 split), is that neither has a claim to their partner`s assets, unless these are jointly owned. The myth of the common law spouse acquiring rights akin to married couples after a couple of years is sadly still far too prevalent.

Similarly, unless debts are held in both parties` names, then these will be the responsibility of the person in whose name they are.

In either case, this principle may be refuted however, if sufficient reason can be shown as to why the basic rule should be ignored or departed from. As stated above, however, this can be difficult to prove.

In establishing whether a cohabitee has any claim to their partner`s assets, the law looks to equitable principles (ie, principles of fairness), should such a claim be made. But it`s not entirely straightforward.

Want to find out more?

The rest of this article can be found at www.womenlegal.co.uk.
Women Legal has been created in recognition of the fact that women very often have distinctly different requirements to men when it comes to selecting their lawyer.

The professionals at Women Legal have many years experience in family law and an understanding that women have issues arising from their divorce, separation or family matters which they may only feel comfortable discussing with another woman or may consider a female lawyer will be more sympathetic to their requirements and needs during the course of the case.