Matrimonial Home? A Simple Guide to your rights in the Family Home

Family Home

It is common for couples and civil partners to buy a family home together to provide for themselves and their children. The ownership of the family home is sometimes in the name of the couple or both partners and sometimes it is only one partner whose name is on the Title deed or in conveyancing documents, which effectively means that legally only the person whose name is on the Title deed will be considered as the rightful owner of the family home, which gives rise to the question that “what happens to the other partner or spouse and his/her share in the matrimonial home”?

Reading Time: 5 Minutes                 Issues: Ownership of the Family Matrimonial Home


What is Included in this article?

  • Problems
  • Legal rights of each partner
  • How to prove an interest in the family home
  • Express Trust
  • Implied Trust
  • Resulting Trusts
  • Constructive Trust
  • Criteria for Unconscionability
  • Common Intention
  • Detriment
  • Quantifying the Share

Problem

The problem often arises when the relationship between husband and wife or civil partners breaks down or mortgagee/lender seeks possession due to a variety of reasons including the non-payment of mortgage for a substantial time.

This situation often requires a need to establish where the beneficial interests of the parties lie or who owns what in the matrimonial home or more bluntly what is the exact share of each partner?

Legal rights of each partner

It is presumed in the English law that if the couple is a joint tenant or jointly registered as owners of the matrimonial house then they own the house jointly/equally although the law allows each partner to rebut this presumption, which means that the disagreeing partner can ask the court or request to the court that they are not joint tenants or hold the family home in equal shares. If the couple owns the property as a joint tenant they have an equal share in the matrimonial home.

Example

Amanda and Steve bought 20 London Road as their family home as Joint Tenants. Which means that they both hold the house equally. Upon a disagreement, Steve argues that it is not the joint tenancy and he holds 80% of the house instead of equal shares. In this case, Steve can always ask the court to adjudicate or rebut the presumption that he and Amanda held the family home equally as joint tenants.

If the property is only in the name of one person (either partner or either in the name of husband or wife) then the other person, whose name is not on the deed or in conveyancing document must prove that he/she also holds some interest in the family home even though his/her name does not appear in the legal documents

Example

Amanda and Steve bought 20 London Road as their family home but due to some reason (which could be anything), only Steve’s name appears on the Title Deed (legal documents) as the owner of the family house. Upon a disagreement, Steve argues he is the only owner of the family home and Amanda has nothing to do with the home. Amanda can always ask the court to adjudicate the matter and must prove that she holds an interest in the family home as well, even though her name does not appear on the Title Deed or in the Conveyancing documents.

How to Prove an Interest in the Family Home

The party whose name is not on the legal documents can prove the interest in the family home by proving that there was, either an express trust or implied trust or resulting trust.

Express Trust:

Which arises at the express intention of the parties, and the couple must provide evidence of their intention to form an express trust in writing.

Implied Trust:

For an implied trust no formalities are required. The law recognises equitable interests through contributions to property/conduct of parties in the form of resulting trusts or constructive trusts

Example

Amanda and Steve bought 20 London Road as their family home but due to some reason (which could be anything), only Steve’s name appears on legal documents as the owner of the family house. Upon a disagreement, Steve argues he is the sole owner of the family home and Amanda has nothing to do with the family home. Amanda can ask the family court to decide. However, Amanda has to prove that there was an express trust between her and Steve that they will be joint or equal owners of the family house OR the court may imply a trust by looking into the circumstances and the contributions or sacrifices made by Amanda in acquiring and maintaining the family home and may impose a constructive/resulting trust

Resulting Trusts

A resulting trust is deemed to be the only possible arrangement under the following conditions

  • Where a couple or civil partners have expressly agreed to hold the family house between them as joint owners or in any other arrangement, the courts may find no difficulty in enforcing the promise and the partner whose name is not on the legal documents gets his/her fair share.
  • Under resulting trusts, the court gives effect to the unexpressed intention of the parties.
  •  The party claiming relief and whose name is not on the legal documents must make a direct financial contribution to the purchase price of the property at the time of purchase.
  •  Contributing to household expenses is an indirect contribution and it may not be held sufficient under resulting trusts.
  • Where a partner contributes to the purchasing price at the time of purchase it is presumed that such partner intended to keep an equitable interest to the value of that contribution
  • Where a partner pays monthly mortgage payments the courts may imply resulting trusts if there was an agreement at the time of purchase.
  • The courts may not imply a resulting trust where the couple agree to any arrangement in regards to mortgage payment after the purchase of a family home.
  • If a partner makes a direct financial contribution to the purchase price of the property a resulting trust is presumed and the presumption is rebuttable by evidence that such partner did not intend to acquire any beneficial interest by making the direct financial contribution to the purchase price.
  • In cases of special relationships, for example, a father and son/daughter, a son-in-law/daughter-in-law it is presumed that any financial contribution was an advancement instead of a direct contribution to the purchase price, however, it is a rebuttable presumption and the person who provided the financial assistance can always provide evidence contrary to the presumption.

Important Note

Both resulting trusts and constructive trusts are implied by the court by looking into the evidence and the overall arrangement between the couple and civil partners concerning purchasing, maintenance and daily running of the family home.

Constructive Trust

The third way where a civil partner or a husband/wife whose name is not on the legal documents can claim an equitable interest in the family house is through constructive trust. A constructive trust is implied by the court.

  • Courts recognize common intention couples and civil partners to share the equitable ownership of the property
  • The basis of a constructive trust is unconscionability and the questions raised by the court is, would it be unconscionable for the legal owner to deny the other partner an equitable share?
  • If it is unconscionable, the court may enforce a constructive trust for the family home

Criteria for Unconscionability

  1. The legal owner’s conduct led the other partner or couple to believe that she/he had a share in the family home  
  2. The other partner /couple acted in reliance upon this to her detriment

Example

Steve and Amanda agreed to buy 20 London Road as their family home and agreed on that Steve will secure the deposit of the house and Amanda will contribute towards the necessary repairs of the kitchen, washroom and garden and they both will hold the family home as joint tenants.

Upon the breakup of the relationship, Steve now claims that he is the sole owner of the family home and Amanda has nothing to do with the family home

In such circumstances, the court will look into the conduct of Steve and Amanda and as Amanda may have acted in reliance upon and to her detriment by agreeing to repair the kitchen, washroom and garden, it is likely that in these circumstances the court may imply a constructive trust and will decide on the exact share of Amanda and Steve

Common Intention

Common intention can be expressed in which parties have expressly stated their intention (agree) to share the equitable ownership. Common intention can be inferred from the conduct of the parties as well.

Detriment

Detriment refers to a change in position (generally the financial situation) which has occurred due to common intention or understanding between the couple

Example

 Paying housekeeping expenses and looking after children = detriment

 Direct financial contribution to the purchase price = detriment

Quantifying the share

The courts quantify the share by looking at the common intention of the parties or where the intention of the parties is not clear, the courts will examine the whole course of the dealings between the parties to find out the common intention and award the appropriate percentage to each party.

Approach

  • The courts will search for the common intention of the parties
  • The courts will take a ‘holistic’ approach to the quantification of shares
  •  The courts decide on a case-by-case basis

A non-exhaustive list of factors considered by the Courts

1. Parties’ financial contributions to the home

2. Discussions at the time of transfer

 3. The purpose for which the home was acquired

4. How the purchase was financed

5. Nature of the relationship & the children of both parties

6. The couple’s financial arrangements – how they paid outgoings

7. The parties’ individual characters/personalities

 8. The reason for any relevant declarations on the land register

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