Rights Of Cohabitees & Children To Stay In The Family Home
In her latest blog, Family Law expert, Alison Wilding, discusses the rights of cohabitees and children to stay in the family home….
What Rights Do I Have To Continue To Live In A Property If I Am Not Married To My Partner?
Cohabitees do not have the same rights as a married couple in relation to having a financial settlement. A cohabitee only has rights in property law, so for instance, if the family home is purchased in joint names and there is no evidence to the contrary, they will own the equity in that house in equal shares, no matter who the children live with or any difference in the parties incomes or other financial situation.
If one party cannot afford to buy out the other’s financial interest then the house would normally be sold. However, where there are children in the family, the parent who is the primary carer can apply to the court under Schedule 1 of the Children Act 1989 for an order that a sale of the family home should be deferred until the youngest child is no longer dependent.This is usually taken to be when they are 18 or leave full time secondary education.
How Does A Court Decide Whether A Sale Of The Family Home Should Be Deferred?
The court have to consider the welfare of the child. However, unlike deciding who a child should live with or whether they should have contact with the other parent, the child’s welfare is not paramount in their decision making. This is because an application to defer a sale of the family home relates to the maintenance of the child rather than their upbringing. The court will however, consider the needs of the child.
A recent case has highlighted the issues that the court need to take into account. This is the case of V v W (2020). The parents had separated but were still living in the same house. The mother was 50 and an accountant earning £3900 per month. The father was aged 53. He had his own haulage company but due to illness had been unable to work since 2015. The mother applied to the court for an order for the family home to be sold under the Trust of Land and Appointment of Trustees Act 1996. The father applied for an order under schedule 1 of the Children Act 1989 stating that he was the primary carer of the parties’ youngest child and that the family home should not be sold until he was 21 or had left full-time education, whichever was the later. At the time he had another 4 years left of secondary education.
The court took into account the following issues:
1) The Ability Of The Father To Maintain The Mortgage And The Property
The court did not feel that it was appropriate to expect the mother to continue to contribute towards the mortgage if she was not living in the house. The father was not working and could not afford to pay the mortgage or living expenses of the property. He said that his parents would assist him but the court felt that there was no guarantee of this, particularly as they were already paying the child’s school fees. The father already had debts. There was therefore, a strong possibility that the property would be repossessed and would deteriorate in its condition thus reducing its value. The court felt that it was unreasonable to expect the mother to live with this risk.
2) The Needs Of The Child
The child needed to be financially supported by his parents, be clothed, fed and have his daily needs provided for. The court said that it would be “nice” for him to continue to live in the village where he had always lived, be close to his school and friends and live in a house with a garden and where his friends could stay for sleepovers. But these are not needs. He did not need to live in a four-bedroom house.
The current situation with both parents living in the same house meant that he was likely to witness hostility between the parents at the very least and it was not in his best interests to continue to be exposed to parental conflict.
3) The Financial Needs Of The Parties
Both parties needed to re-house themselves in a property where the children could stay with them. Both parties had unsecured debt. There was no indication as to how the father would pay his debt without a sale of the family home.
The mother was aged 50 and would at present be able to obtain a mortgage but only if she had a deposit which could only come from the sale proceeds of the family home. If she was expected to wait until the youngest child was 21 or even 18 she would be nearing 60 and the prospect of her obtaining a mortgage to purchase another house at that time would be limited.
The father was not in a position to obtain a mortgage or release the mother from the existing mortgage.
The mother would remain jointly liable for the mortgage unless the family home was sold.
They each had about £160,000 to £170,000 equity in the property. Both could afford to rehouse themselves in a property close to the child’s school.
4) Who Was The Primary Carer Of The Child?
The father said that he was the primary carer of the child but there was evidence that he had prevented the mother from taking on such a role because she had not been allowed in the house alone with the children, had been made to feel uncomfortable, excluded and unwanted. The court felt that the current situation resembled a shared care arrangement.
What The Court Decided
Taking all the above into account the court felt that it would be best for the family home to be sold as soon as reasonably practicable.
When Will The Court Agree To Defer A Sale Of The Family Home?
The court are more likely to agree to defer a sale of the family home if the other party are able to rehouse themselves and not have their financial stability put at risk so these types of orders are often more common in high income cases. The courts have to consider all the individual circumstances, including the needs of both parties and the children. If an order is made to defer a sale of the family home, when it is eventually sold, the sale proceeds will still be divided in the same way as if it had been sold straight away.
Alison Wilding
July 2020