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Effect of separation on home ownership with children

Effect of separation on home ownership with children is a complex but changing area of law. Many people now own property with a life partner and did not really pay attention to the legal effect of not being married at the time of buying the house, causing confusion at separation as there is no easy process to distribute ownership fairly. Family law solicitor Michael Brennan at Northwich solicitors Stonehewer Moss has noted a subtle change of attitude by the appeal court in a recent case where the parties where self represented. Michael says, “There have been a series of case precedents dealing with cohabitation rights that appeared to make for uncomfortable reading if you took the cheap option when buying with your partner of just agreeing the house was a joint tenancy. when the relationship comes to an end the unfairness this can create comes home, with circumstances being potentially far different than when the house was first bought. The interpretation of case law changes with the time and the recent case of Barnes v Phillips 2015 suggests that a separating co-owner in difficult circumstances may have a hope of seeing a fair outcome. Sadly there is no guarantee as cohabitants still live beyond the reach of the distributive powers of divorce courts but, for example, if the court is satisfied the owners intended to change their relations (perhaps at the point of separation) it can then seek to impute a basis of ownership from the circumstances if express or inferred agreement cannot be determined. This is a common situation where separated couples will not negotiate but the reality is one of the owners has abandoned responsibility for the property or family. Crucially, the Court in Barnes made the following observation:-

In view of the very wide terms in which the House of Lords in Stack v Dowden and the Supreme Court in Jones v Kernott described the relevant context, I consider that, in principle, it should be open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties save in circumstances where it is clear that to do so would result in double liability. However, there seems to be no danger of that in the present case. Mr. Horton pointed to the fact that monies are owed by Mr. Barnes to the Child Support Agency and makes the point that such monies will remain owing notwithstanding the fact that they have been taken into account in the assessment of the parties’ fair shares in the property. However, the respondent only referred the matter to the CSA in 2013 when only their second daughter was under the age of 18. By February 2014 when the judge delivered his judgment the appellant’s liability to the CSA would be limited to that single year.

Effect of separation on home ownership with children is therefore a matter in suitable cases that can be explored by the Court to re balance ownership of a house. Barnes resulted in an  85% to 15% split. I recommend that separated couples unable to agree seek solicitors advice as this second stage of assessment of property rights will only occur if the court  is satisfied the property is no longer held under a joint tenancy equal ownership. It remains the case that a person achieving the sort of outcome seen in Barnes must have suffered a great deal of expense and stress compared to the relatively straightforward procedure in divorce or the advantages of a professionally drawn co-habitation agreement if you decide to buy when unmarried”.

For advice or assistance to negotiate a co-habitation agreement or a property dispute following separation telephone 01606872200 e mail visit

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