Couples who have had an Islamic marriage will naturally think of themselves as husband and wife however, they may not understand that their marriage does not qualify under the law, leaving their legal position uncertain. If a ‘marriage’ does not comply with the legal requirements of the UK, the courts will only consider it to be a religious ceremony and therefore it will not carry any legal weight.

In such circumstances the breakdown of a relationship and any resulting difficulties needing the intervention of courts will have limited options, the parties will be viewed as a ‘cohabiting couple’ who do not have the same legal right as married couple.

If a relationship breaks down and a marriage is not recognised in the UK court, it Is still possible to make applications to the English court for an Order in respect of the family issues those orders may include:

• Excluding your partner from the family home – Family Law 1996
• Protecting your occupation of the family home – Family Law Act 1996
• An order for the sale of the family home and distribution of the sale proceeds – Trusts of Land and Appointment of Trustees Act 1996
• Providing for child arrangements for your children, both the living and spending time with arrangements – Children Act 1989.

Family Law Act 1996 Applications             

The family Law Act has many aspects, one of its primary provisions is to protect from Domestic Abuse by the making of a Non-Molestation Order and to regulate the occupation of a family home, an Occupational Order.

Non-Molestation Orders and Occupation Orders are emergency orders specifically designed to protect one party and any children of the family in the event of a relationship breakdown either within marriage, a cohabiting couple or in some circumstances after family relationships between ‘associated persons’ for example if an adult son is abusing his mother and will not leave the family home.

Occupational Orders are extremely helpful to assist in situations where one party is seeking to exclude a partner following the breakdown of a relationship, when there are issues of domestic abuse. Moreover, if you are a cohabitee (and/or a parent of a child) being threatened with being ‘thrown out’ because the home is in the other parties sole name, you can seek the protection of the court by making an application for an Occupational Order. If made, the Order will last for six or twelve months in most cases as an interim provision, until long term arrangements can be made for made for example an Order under Schedule One of the Children Act 1989.

Occupational Orders may also be made excluding the other party form occupying the family home, in circumstances of Domestic Abuse when it would be unsafe for the parties to continue to reside under the same roof. Again, in certain circumstances it is possible for a court order to be made excluding the sole owner of a family home from that property until the longer-term arrangements are dealt with.

Trust of Land Appointment of Trustees Act 1996 Applications             

TOLATA applications (as they are commonly referred to under this Act) are the primary means of seeking to resolve disputes between ‘cohabiting couples’ in respect of property rights, usually the ‘family home’.

If a relationship has broken down and you wish to realise your share of the equity within the family home however, your former partner is refusing to sell the property, an application can be made under TOLATA seeking an order for sale. Indeed, if necessary the court may also make an order to determine how the proceeds of the sale are divided and declaring the extent of interest in a property. In certain circumstances these orders can be made even when the property is held in one partner sole name. Indeed, if your family home is owned in your partners sole name and they are seeking to sell the family home, you may be able to either prevent that immediate sale or receive part of the proceeds of the sale.

Schedule One of the Children Act 1989 Applications  

Schedule one of the Children Act 1989 provides for a parent to seeks an order from the court to make financial provision for children including providing for the housing needs of children by placing a property often, the former family home ‘on trust’ to provide a home for the parent with care of the children and the child/children of the family. Usually until the youngest child reaches 18 years of age.

The provision of Schedule One may also provide for lump sum for the benefit of the child/children of the relationship including auxiliary expenses to provide for the child’s care, housing needs or education.

This provision under the Children Act is very useful in circumstances when the family home is registered in the other parties sole name and the parent with care, has no property rights or in the case of joint ownership by ‘cohabiting couples’ when one party is attempting to force the sale of the family home. Indeed, Schedule One applications are often the best ‘defence’ to an application for an Order for Sale under the Trust on Land and Appointment of Trustees Act 1996.

For further confidential advice please contact Maria Steele-Williams at maria@faranitaylor.com for a free initial consultation.