Family breakups are usually unpleasant, and when property is involved, things can get even more problematic.
In general, when a couple is cohabiting (not married or in a civil partnership), the property belongs to whoever is listed as the owner on the deeds.
When there are minor children, the court will prioritise their interests and will usually make sure that their housing needs are addressed until they reach the age of majority. The most prevalent situation in which a special agreement is required to secure the housing needs of minor children is when the mother and children reside in a property owned by the father. Such arrangements may include a trust settlement, with the trust capital (the property) reverting to the father when the youngest kid reaches the age of 18.
In some cases, the courts will rule that there is a ‘constructive trust’ that exists as a result of the couple’s arrangements. In such circumstances, the individual claiming an interest in the property that is different from a legal interest must demonstrate this.
In such instances, the courts will evaluate the parties’ intents. When one party claims a piece of the property, the court will first inquire if the beneficial interest in the property was intended to be shared. If the response is ‘yes,’ the court will decide what the nature and proportions of the couple’s shares should be based on the facts. It is also necessary to demonstrate that the claimant relied on the shared intention to possess the property jointly to his or her injury.
In these circumstances, the following factors will help to prove a claim to a beneficial interest in a property:
- making a contribution to the costs of purchase;
- making a contribution to the mortgage, rates etc.;
- making a non-financial contribution (such as working to renovate, improve or maintain the property); and
- making an indirect financial contribution (e.g. paying other household bills so that the other partner can pay the mortgage etc.).
Cohabitation can provide unique challenges, and judgements are heavily reliant on the circumstances at hand, making a cohabitation agreement and recording any agreements made about property ownership highly recommended.
While marriage nullifies previous wills, divorce does not, thus reconsidering your will on divorce is always a good idea.
