Your rights when love breaks down

This is a busy time of year in the field of family law after the Christmas break. Apparently, it is considered the biggest break-up time for couples.

The Citizens Information Service has always given basic advice and information on family law matters, but it is important to note that we are not a legal service and always recommend individuals seek legal advice in such matters.

Options for separating couples

You can legally end a marriage in three ways - a separation agreement, judicial separation and divorce. You can also legally end a civil partnership using a process called dissolution. In order to be granted a judicial separation, divorce or dissolution, you must apply to the courts, which will look at a range of factors when considering your application, such as your income and standard of living.

Depending on your situation, the court can make ancillary orders impacting different aspects of your life. For example, regarding custody of children and ownership of the home.

Separation agreements are instead negotiated through your solicitor and your spouse’s solicitor, and do not need to go through the courts. If agreement can be reached reasonably quickly and a separation agreement drawn up, it is cheaper and less stressful than going to court. Many couples formalise their separation in this way.

Is it different if the couple were not married?

If you have been living with your partner and your relationship ends, you may be able to avail of the Redress Scheme for cohabiting couples. This aims to protect a financially dependent member of the couple if the long-term cohabiting relationship ends (either through death or separation). Under the redress scheme, cohabiting couples can get similar orders from the court as are available to married couples when they separate or divorce, if the court is satisfied that one of you was financially dependent on the other.

The types of orders you may apply for under the redress scheme include property adjustment orders, maintenance orders and pension adjustment orders.

To apply for court orders under the redress scheme, you must be a qualified cohabitant. This means you must have been:

Living together in an intimate and committed relationship for at least five years, or

Living together in an intimate and committed relationship for two years if you have had a child with your partner.

You must apply for these orders within two years of your relationship ending, unless there are exceptional circumstances.

If a couple is married and the title deeds of the house are in both names, it is known as a joint tenancy. The couple can agree to sell the property and split the proceeds after any outstanding mortgage is paid, or ‘buy out’ one partner’s share of the property so the other becomes the sole owner. Remember, if there is a mortgage on the home, you will have to get the agreement of the bank.

It’s also important to remember that if you took out a mortgage with your spouse or partner, you are jointly liable for the payments. If your spouse stops paying, you are still responsible for the whole amount.

Family mediation can help couples come to an agreement on how they manage their affairs when the marriage breaks down, including the division of assets.

You do not have to be a legal owner (have your name on the title deeds) of the family home to have a legal right to the property after marriage breakdown. It all depends on the surrounding facts. Matters such as each person’s contribution (financial and otherwise) to the home and the family will be very important. One spouse cannot sell, mortgage, lease or transfer the family home without the consent (permission) of their spouse.

If you are married and applying for judicial separation or divorce, and cannot agree on what happens to the house, the court will make a property adjustment order, where it decides what happens to the property.

What about cohabiting partners in this situation?

In this instance, the family home belongs to the person who holds the legal title to it. If both names are on the deeds, you are both legal owners and jointly have to make decisions as to what will happen to the property.

If you cannot come to an agreement, you can apply to the court to have the property sold and the proceeds divided, or it may be possible to seek an order breaking up the property. This would allow each party to decide what to do with their portion. This may be possible where there is a lot of land connected to the family home, or if there is more than one residence on the property.

Whether you are married or not, if your name is not on the title deeds to the house, you may still be able to show you have some ownership rights in relation to the house. These rights are based on the fact you may have made a contribution (either directly or indirectly) to the purchase price of the house with the intention of gaining a share in the ownership of the house. Usually, if you can show you made a contribution to the purchase price, you will be entitled to a share in it in some proportion to your contribution.

What if there are children involved?

A relationship breakdown can be life-altering. It needs to be handled sensitively to ensure the children’s best interests are prioritised. Often, if a married couple with children is separating, the person who looks after the children the majority of the time will get to stay in the family home until the youngest child reaches 18 years old (or 23 if they are in full-time education).

Dependent children of civil partners are protected in a similar way under the Children and Family Relationships Act 2015.

If the parents cannot agree who the child will live with, the court can make orders in relation to custody and access.

How are access and custody arrangements set up?

A mother who is not married to the father of their child automatically has sole custody of the child. A mother is also an automatic guardian. Married spouses living together have joint custody and are joint guardians.

Where you and your ex-partner agree, it is possible to decide on custody arrangements for your child.

If you do not have automatic rights or cannot reach agreement, you can apply to the court for custody. The main types are sole custody where one parent or person is appointed to be responsible for the child’s day-to-day care, or joint custody where both parents or two people are appointed to be responsible for the child’s day-to-day care.