Posted: Wednesday 9 November 2011
Cohabitees’ Windfall
Only in England can a court step in between cohabiting couples and alter the title to joint owned property so as to redistribute jointly owned equity. Reported today is a decision of the Supreme Court in England where it was decided a man who left his partner 20 years ago was not entitled to half the value of the house they shared, despite owning the property in joint names. The man was awarded a mere 10% of the value as his former partner had paid the mortgage solely for the last 20 years.
Under the Scottish system, nothing could be done by cohabitees to alter title. The remedy available for a cohabitee is one which appears under the Family Law (Scotland) Act 2006 where the woman would have required to raise proceedings against the man within one year of the date of separation and have the onus of establishing that she had suffered economic disadvantage by paying his share of the mortgage. There is even a prospect that if she had continued to enjoy the fruits of occupation during that period, a court may have considered that paying his share of the mortgage would not have been unreasonable. The key consideration there would probably be whether or not her payment was reducing the capital sum outstanding to the lender, all to his financial benefit. Such proceedings would also require to have been raised within a year of the cessation of cohabitation. Nearly 20 years after separation there would not be a legal basis for challenging his entitlement to his one half share, albeit I suppose there may have been recourse to recover his one half contribution of the mortgage payments on the basis that the debt was a joint and several one.
Key to any cohabitees’ dispute is ensuring, firstly that you consult with a suitable Family Law expert and secondly, that you act quickly!
The Morton Fraser Family Law Team in Glasgow and Edinburgh currently have seven Family Law specialists accredited by the Law Society of Scotland. In the event of a query, please contact Fiona Sasan on 0141 274 1100 or Rhona Adams on 0131 247 1000.
