Splitting the family home and mortgage during divorce, dissolution or separation

Navigating the end of a long-term relationship can be extremely stressful, especially if you have to reach an agreement with your ex-partner about the future of the family home.

This can take a long time to resolve whether you are divorcing, getting a dissolution or separating after living together.

You’ll need to take lots of factors into account. If you have any children together then it’s important to consider their needs first and foremost. You’ll need to think carefully about your finances going forward and may well have to consider downsizing if you are moving out.

This guide outlines the main options you have when negotiating the future of your home.

If you own the property jointly

There are three main options if you own your property jointly with your partner and your relationship ends:

1) Sell your home and move out

Sometimes this can be the most straightforward solution, particularly if there are no children involved. Money made from the sale can be used to pay off the remainder of your mortgage, and anything that’s left can be split between you and your ex-partner. This option effectively provides a fresh start for both you and your ex-partner, and may feel the most fair overall.

You will need to get the property valued by an estate agent or surveyor first if you decide to sell.

2) Buy your partner out (or vice versa)

If you decide between you that one of you wants to buy the other out of the property,  ownership of the property will need to be transferred from joint names into the sole name of the person keeping the property. This might be a suitable solution if you have children as it means that the children’s lives will not have to be disrupted by a big move.

This is a more complex option than selling the property outright, and likely quite a costly one for whoever is buying. Many people simply won’t be able to afford to buy their partner out, so it often won’t be possible to take this route.

If it is an option and you still have a joint mortgage then you will usually need the lender’s permission to switch it from your joint names to a sole one. Lenders will most likely insist that you seek a solicitor’s assistance for this process. You’ll also have to get a current valuation on the property from an estate agent or surveyor, and come to a financial agreement with your ex-partner.

3) Retain joint ownership of the home

Depending on your circumstances and how amicable your split is, you and your former partner may decide to keep the ownership and mortgage as they are, provided that one of you has somewhere else to live andel is prepared to continue to pay the relevant share of the mortgage. Separating couples might do this if, for example, they have a fixed-term mortgage with a particularly steep penalty for cancellation, or if their lender won’t agree to change the mortgage to a sole name.

This option is not very common, as it does not provide a “clean break” divorce; that is, you will still share a major financial asset. However, it can still be viable if you have split on good terms and one of you has the funds to afford a new home while continuing to pay the mortgage on the old one.

With this option in particular, keep in mind also that circumstances do change. For example, you might be happy to help pay for a home that you no longer live in if it’s just your partner and children living there, but also think about whether you would want to keep doing so if they were to remarry and their new partner were to move in. Emotional considerations like this can be just as important as financial ones.

What to do if only one of you owns the property

If the property is held in your former partner’s name only rather than jointly, then your options will differ depending on whether you are getting a divorce/dissolution or are just separating after cohabiting. 

If you are married or in a civil partnership then you have what are known as “home rights”, meaning that you are legally entitled to stay in the property even if it’s not in your name (in Scotland this is called being a “non-entitled spouse”). You should register these rights with the Land Registry so that your partner cannot sell or remortgage the house without your permission. You can find out how to do this at GOV.UK.

If you aren’t married and split up with your partner,then you do not have an automatic right to stay, and your ex-partner can ask you to leave as long as they give you reasonable notice. However, you may be able to apply for a court order to remain if it is for the benefit of a child.

You may also try to legally establish an interest in the property in order to claim some of its financial value, in cases where you contributed to the cost of the home (for example,helping pay off a mortgage) or if you had a mutually-agreed stake in the property. It’s up to you to prove this, and you will likely want to seek legal advice, as it can be a very complicated process.

  • In England or Wales you can attempt to establish proof of a “beneficial interest” in the home, if you’ve paid towards the mortgage, or improvements such as an extension. You can also try to obtain this if your ex-partner bought the home in their name only, but you agreed at the time that you would share its value when you sold it. Claims of this sort are not guaranteed to be approved, which is why having evidence and seeking legal help are both crucial.
  • In Northern Ireland you can apply to have any payments you made towards the house refunded, as long as you have evidence of these payments.
  • In Scotland you can attempt to claim that you have been “economically disadvantaged” by the relationship, or your partner has been “economically advantaged”. This could be because you gave up work to look after children, gave up an old property to move in with your ex-partner, or because your ex-partner bought the property with your financial contribution. Bear in mind you only have one year after separating to make this claim, and again it is not guaranteed.

All of this applies in reverse too, so if you own the home and your ex-partner does not, be aware of what their rights and options are.If you don’t already have a solicitor and need legal advice, you can find one through the Law Society’s free Find a solicitor service.

Finally...

If you’re finding it difficult to reach agreement with your ex over your home then it can be a good idea to seek mediation or professional legal advice. Letting the matter go to court should ideally be a last resort if you haven’t been able to reach an agreement.

For more information on mediation, or to find your nearest mediation service, visit the National Family Mediation website. Alternatively, you can find a solicitor with the help of Resolution, a membership organisation for professionals who work with separating couples. All members commit to taking a non-confrontational approach to help couples resolve their issues.

You can find out more about the steps you’ll need to take when divorcing or separating in our article Sorting out your finances when a relationship ends.

Have you split up with a partner when you were living in a shared property together? Did you find the process painful or straightforward? We’d be interested in hearing from you. You can join the money conversation on the Rest Less community or leave a comment below.

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