Cohabitees and forcing a sale when children are involved

Red English telephone booth near a house

In the case of V and W the court was required to rule on an application by one of the parties for an order for sale of the jointly owned property under the Trusts of Land and Appointment of Trustees Act 1996. In this case the parties had been in a relationship between 1995 and 2017 and had two minor children. At the time of the hearing, they still lived in the property they had bought together, but now that their relationship had broken down, the mother was mostly living in an en suite bedroom in the property.

She sought a declaration under s14 of the Act as to the parties’ beneficial entitlement in the property and an order for sale. The father had applied, under schedule 1 Children Act, for the mother’s share of the property to be held on trust for their son until he had finished his education.

The day before the final hearing, the father accepted there should be a declaration of equal beneficial interests in the property despite his previous position that the beneficial interest should be divided 85 to 15 in his favour. The issue that the court needed to rule on was therefore when the property should be sold.

The mother wanted a prompt sale while the father wanted the sale deferred for up to eight years when the youngest child turned 21 or finished full-time education. His Honour Justice Vincent noted that while the Trusts of Land and Appointment of Trustees Act and Schedule 1 Childrens Act applications place emphasis on different factors, both require the court to consider all the circumstances.

On the evidence, he found that the father had prevented the mother from taking on as much of a caring role as she wanted for her children because she had not been allowed in the house alone with them and had been made to feel uncomfortable, excluded and unwanted. That said, it appeared to him that the current situation most resembled a shared care arrangement and that the father would find it difficult to establish that he would be entitled to apply for an order under schedule 1 of the Childrens Act.

The court ordered in the mother’s favour that the property be put on the open market and sold for the best price possible, although one party could consider buying the other out. 

If you have a property dispute or family law problem, why not contact one of Alexander JLO’s specialist lawyers in the fields for a free, no obligation consultation and see what we can do for you?

2 thoughts on “Cohabitees and forcing a sale when children are involved

  1. Jason says:

    Hi myself and my ex split up a year ago we have a property together owned as tenants in common. She still lives in the property with our 3 year old daughter and I moved out last year. I have still always paid half the mortgage and my daughters maintenance money but the position I am in is I can’t afford to get a property of my own and am living with family. There is a lot of equity in the property and would give us both enough to get our own homes so we can both have quality time with our daughter. She won’t sale and is also not in a position to buy me out. Is there anything I can do as it all seams to be such a grey area.

    • Martha Holland says:

      Thank you for your question Jason.

      As there is no mention of marriage, we will treat your situation as though you were cohabiting partners only.

      In the event that it is not possible to buy one another out and your ex partner continues to refuse to sell the property, you can apply to the court for an order for sale. Such right is derived from the Trusts of Land and Appointment of Trustees Act 1996.

      When considering your application, the court will look at a variety of factors, including the intentions of the parties, the purpose of the property and the impact of any sale. Therefore, the welfare of your daughter will be a big consideration of the court as she is a minor.

      There are a variety of orders which the court can make, including making an order for sale, attaching terms and conditions to the sale such as postponing it until a certain event, and making judgments on how to divide the net proceeds of sale if the court considers it appropriate to account for any contributions made towards the property by a party who has not enjoyed the occupation of the property.

      Given the varying factors which can influence the court, we recommend seeking legal advice before pursuing with your claim.

      Martha Holland

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