For part 3 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Madhur Sharma on how she has been coping during these unprecedented times.
The statutory ground for divorce under the 1973 Matrimonial Causes Act, amended by the Marriage (Same Sex Couples) Act 2013, is the irretrievable breakdown of a marriage of at least one year’s duration. This ground for divorce is evidence by one of five facts:
- your spouse has committed adultery;
- your spouse has behaved unreasonably;
- your spouse has deserted you for two years;
- you have lived apart for two years and your spouse consents to the divorce; or
- you have lived apart for five years.
Financial claims following divorce are settled by either an agreement or a court order. How this is settled depends on the statutory framework and years of case law that guide the solicitors involved. The length of the marriage relationship is a key factor in determining how assets are apportioned. Principles of fairness, need sharing, compensation and sharing must be taken into account.
Despite the best efforts of family solicitors to disabuse the public of its existence, many people still espouse the concept of the ‘common law’ husband or wife. However, there is no statutory process to regulate the breakup of an unmarried couple and, instead, the unmarried party must rely on strict and, often complicated, property rights.
In the absence of an express written intention (in the best case a Deed of Trust, and the worst case a letter of intention), the court looks to the legal title; whose name(s) is on the deeds or, these days, registered at the Land Registry as the legal owner(s)? Unless you are married to the owner you have no statutory family-related right to make a claim. Contribution might be ignored completely. In exceptional circumstances, the court will try to infer an intention from people’s behaviour – even if it was never discussed. Not an easy task.
The situation can be even worse when the house is in the sole legal ownership of just one party. Did the other party pay for the central heating or build an extension? Did he tell her she couldn’t be a co-owner because she wasn’t working? Did she give up her own tenancy to move in and help pay the mortgage? The first is deception, the second is detrimental reliance.
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