Chapters of the article
Quick overview
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Unmarried partners do not have community property. They each own things they have bought with their own money.
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Property bought together is community property. When you break up, you can agree to pay one partner out, divide the property or sell it.
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Childcare can be dealt with by agreement between the parents. If you cannot agree, the court will decide on both custody and maintenance.
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The mortgage remains the obligation of both borrowers. The loan cannot be discharged without the bank’s consent.
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Disputes over property or debts can be resolved by the court. The court can decide, for example, to dissolve joint ownership or to settle between the partners.
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Pets are legally treated in a similar way to property. If it is jointly owned, the partners must agree who gets to keep it.
If you and your ex-partner cannot agree on child custody or property division, a family law solicitor can help. Our attorneys can help you prepare an agreement or petition for court. Contact us.
In practice, we often see that partners start to resolve legal issues only when the relationship is definitely over. But this can be complicated because emotions can prevent a rational agreement about property, children or debts.
We have a child together – do we need to go to court?
If you were not married, are now separating and are parents of a minor child, you don’t necessarily need to go to court. It will all depend on whether you are able to agree on the care of the child together. This is definitely an advantage for unmarried couples.
This is because spouses who want to divorce have to go to court about the children even if they have agreed on custody. In this case, the court will approve the agreement.
Unmarried partners only go to court if they are unable to agree on child custody arrangements or if the agreement does not work. Then one of them must apply to the court and ask the court to decide who will look after the child and how, whether the child will be in alternate, joint or sole custody, and who will pay maintenance and how much, if any.
Experience in family law shows that the biggest conflicts after a separation often arise around child custody. If the parents can agree on clear rules at the outset, the situation is usually much calmer for the child and the parents.
If you and your former partner cannot agree on child custody, we can help you prepare a parenting agreement or petition to the court to make child custody clear and enforceable.
Mortgage
You borrowed together to buy a home but the relationship didn’t work out. This is a fairly common scenario. There are a number of solutions to this situation, but for all of them it is essential to come to an agreement with the bank in the first place. Often, ex-partners will agree that only one of them will keep the property they owned together, pay off the other and pay off the rest of the mortgage themselves.
However, this is where the plan can fall through if the bank does not agree. The bank, as the lender, has to allow the change on the borrowers’ side, otherwise there is no way out of the mortgage.
The bank will therefore check the assets and especially the earnings of the partner who wants to have the mortgage transferred to himself. If the bank assesses that the income is not sufficient, it will not allow the other partner to bail out.
You can agree with your ex-partner that he will stay in the house and pay the mortgage, but if the bank does not approve and the ex-partner stops paying, the bank will come to you.
In this case, the solution may be to sell the property and use the money to pay off the mortgage and divide any remaining balance between the former partners.
Even in the case of a mortgage or other joint debts, the former partners can go to court if they cannot agree on a solution. Often, one of the ex-partners feels that he or she has put more of his or her own money into paying off the joint debt and wants some compensation from the other.
The key to success is always to be able to prove your claim, i.e. to have evidence of who paid back what and how much. To avoid any post-divorce wrangling, it is always a good idea to agree before any debt is incurred who will repay and how much, what will be bought with the borrowed money, who will own it, write everything down and then also keep a record of repayments.
In our practice, we quite often find that both partners remain on the mortgage as co-borrowers, even though one of them no longer lives in the property. Many people are unaware that they cannot get out of the loan without the bank’s consent.
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How to divide the property?
The most common mistake we see with unmarried couples is that they do not clarify the ownership of their property in advance. When they break up, it can then be very difficult to prove who paid for what or who really owns the property.
If the partners are not married, then they do not have community property, as is common in marriage. This means that each person owns the things they bought with their own money.
If the partners buy an item together, they own it jointly. The moment they no longer want to be together, they can dissolve such co-ownership by agreement and settle financially. They can dissolve the co-ownership by dividing the co-ownership (if physically possible and it makes sense – for example, a large plot of land), or one of them keeps the item and pays the other off, or they can sell the item and split the money.
If they cannot agree on how to divide the joint property, they can take legal action in court to decide how to dissolve the joint ownership and settle the ex-partnership.
Property division after a breakup tends to be one of the most common sources of disputes. If you need, we can prepare an agreement for the division of the community property or represent you in the dissolution and division proceedings in court.
Shared animal
Did you get a dog or cat together that you both have an emotional attachment to and neither of you want to give up the pet? According to the Civil Code, an animal is not a thing, but a living creature endowed with senses. On the other hand, where it does not contradict the nature of the animal, the same sections apply to it as in the case of things.
As a result, thepet will besubject to the same legal provisions as common property. The pet will normally belong to the person who acquired it.
If the pet is jointly owned, the claim to it will be the same for the expartners and it will be up to them to agree what to do with it, who gets to keep it, or whether they need to take turns with it. If they cannot agree, they can go to court.
Summary
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Separating an unmarried couple has different legal consequences to divorce because there is no community property between the partners. Therefore, each partner remains the owner of the things he or she has acquired with his or her own money, whereas property acquired together is jointly owned and can be divided by agreement, by paying one of the partners or by selling it after the separation. If the former partners have a child in common, they can agree on custody and maintenance, or the court can decide. For joint debts, such as a mortgage, both partners usually remain debtors and the loan cannot be discharged without the bank’s consent. Similarly, pets are treated as property in legal terms, although the law emphasises their special nature as living creatures. If the former partners cannot agree on child custody, property or debts, the court can resolve the dispute.
Frequently Asked Questions
Do we have to take child custody to court after a breakup?
Not always. If the parents can agree on child custody and maintenance, they can make an agreement. If they want it to be legally enforceable, the court must approve it. If an agreement is not possible, the court will decide on custody and maintenance.
How is the property of an unmarried couple divided?
Unlike spouses, unmarried partners do not have community property. Each owns what he or she has bought with his or her own money. Things acquired together are jointly owned and need to be settled after the separation.
What if one partner paid more than the other?
The partner who has paid more than his/her share may demand financial compensation from the other partner. However, it is necessary to prove how much was actually paid.
Can one partner evict the other from the apartment?
It depends on the ownership or lease agreement. If only one partner owns the apartment, he or she can ask the other to move out. If it is a joint tenancy or co-ownership, the situation must be resolved by agreement or by the courts.
How long do we have to settle the community property?
The law does not set a specific time limit as for spouses. However, claims arising from co-ownership may be time-barred, so it is advisable to resolve the property relations as soon as possible.
Who gets the dog or other pet?
From a legal point of view, it is treated similarly to property. The decisive factor is who owns it. If it is jointly owned, the partners must agree who keeps it or how custody will be divided.
What if the partners can't agree on anything?
In such a situation, either of them can take the matter to court. The court will then decide, for example, on child custody, maintenance or the dissolution and division of the community of property.
