Separation can be a very difficult time for all concerned. As well as the emotional side of the separation, there are often property and assets which need to be sorted out and if there are children involved, arrangements to be made regarding their care.

For issues relating to children please visit this page

Do I have the same rights as someone who is married?

There is a common myth amongst the public that ‘common law’ husbands and wives have some legal rights similar to married couples. This is wrong. As a cohabiting couple, you have very few legal rights in relation to property and they are generally based on strict property law principles.

Cohabiting couples have very few legal rights over any assets or property owned wholly by the other person, unless you can prove you have directly contributed financially in some way (for example, mortgage repayments) and that it was intended that the two of you would both benefit from it.

This is because the law relating to unmarried couples is governed by civil law, rather than matrimonial law.

What will happen to our property?

The starting point in deciding what should happen to a jointly owned property is to look at how the property is owned according to the Land Registry. If you own the property as “joint tenants”, the starting point is that you own the property equally and have an equal share in the equity in the property.

If you own the property as “tenants in common”, the starting point will depend on what you decided when you purchased the property, you may each own 50% of the property, or different shares.

You may decide you want to sell the property and share the sale proceeds, or one partner may want to buy out the other person by paying them a lump sum in exchange for that person transferring their interest in the property.

Do we have to enter into a written agreement?

As with all separations, there is no requirement that you enter into a formal written agreement. However, so that everybody is clear about what is going to happen following a separation, we always advise that a formal written agreement, known as a Separation Agreement is signed by both parties.

Will we have to go to Court?

Most couples manage to sort out their finances without having to go to Court.

Many people can reach an agreement directly between themselves, or with the help of solicitors who can negotiate on your behalf.

Some couples may choose to go to mediation to help them come up with a solution about what will happen to their property and a mediator can draw up an agreement that both parties sign.

If there is a disagreement about what should happen to your property after a separation and negotiation or mediation hasn’t resulted in an agreement then parties may have to go to Court to ask a Judge to decide.

Going to Court is expensive and can be extremely stressful. It should only be considered as a last resort. In fact, there are certain steps that must be taken before proceedings can be issued; these steps are designed to help parties reach an agreement without going to Court.

On the 9th March 2015, new Court fees came into force for civil money claims and for any claim over the value of £10,000 the Court fee alone is 5% of the value of your claim.

Will I get my costs back if I am successful?

The usual rule in civil proceedings is that ‘costs follow the event’. Put simply, this means that usually the losing party pays the costs of the successful party.

However, a Judge has a wide range of powers when it comes to making costs orders. If he believes that one party has behaved unreasonably, for example by refusing to attend mediation, then a Judge can decide you are not entitled to your costs even if you are successful at Court.

There are no guarantees with litigation and therefore you should always try and reach an agreement without having to go to Court.

How much will it cost me?

The costs of a case are very much dependant on how complex your case is. If you have a lot of assets that need to be sorted out, inevitably the case will cost more. Similarly, if your jointly owned property is the only asset that needs resolving, a case is likely to cost less.

Costs will also be dependant on how much negotiating you can do directly with your partner.

We are able to offer fixed fees in certain circumstances. We will advise you whether we think your case is suitable for a fixed fee.

What is the procedure for a claim of this type?

Generally:-

  1. Claim is issued

The person who issues the claim is called the Claimant. They send their application to Court along with the relevant fee.

The claim form is then issued at Court and given a case number. A copy of your claim form is then sent to your partner, who will be the Defendant. The Court will let you know the date the claim form was posted to the Defendant.

  1. Defence is filed

Your opponent then has 14 days in which to file an ‘acknowledgement of service’ form, indicating that they have received the claim and whether they want to defend some or all of the claim.

They then have a further 14 days in which to file their ‘defence’. Once the defence has been filed the Court will send you a copy.

  1. Directions Questionnaire

The Court will usually send both parties a Directions Questionnaire. This questionnaire is to help the Court decide which ‘track’ the case should be allocated to. The questionnaire will ask how many witnesses a person wants to call, if there will be any need for expert reports, how long a trial is likely to be and for an estimate of costs.

Parties are encouraged to consider whether the claim should be stopped for a one month period to attempt mediation or other alternative dispute resolution. Parties are also encouraged to agree the directions they are seeking, so continued communication at this point is important.

  1. Allocation

Once the Court has received the questionnaires, it will allocate the case to a track (usually fast track or multi track). An allocation hearing may be listed if the Court cannot allocate the case on the information contained in the papers.

  1. Case Management Conferences (CMC’s)

The Court can list more complex or difficult cases for a CMC. This hearing is designed to set out the timetabling and future conduct of the case up to a final hearing (a trial). A judge has a wide range of powers to allow the Court to deal with cases robustly. A Court can for example limit the amount of legal costs that a party is allowed to incur, or can limit the number of experts instructed.

It is also an opportunity for parties to further discuss and negotiate. Even if an agreement cannot be reached, it may help narrow some of the issues.

  1. Preparation for Trial – pre-trial checklist

A pre-trial checklist is sent to each party, where you must confirm that you have complied with the previous directions set by the Court (or what directions are still outstanding and when they will be complied with).

It is also an opportunity for parties to indicate to the Court on which dates their witnesses (including the expert witnesses) will not be available to give evidence to allow the Court to fix a date for trial.

A Court may list a hearing called a ‘Pre-trial review’ if it cannot deal with matters on the papers or a hearing is necessary for some other reason

  1. Trial

This is the final hearing, where the Court will listen to all the evidence and make a decision.

You should be aware that judges are very strict when it comes to dealing with civil claims. If a party does not comply with an order of the Court they can be punished by wasted costs orders or the court can impose other sanctions on them, such as preventing them from being able to rely upon certain evidence. You should always seek specialist legal advice before attempting to issue a claim yourself.

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