What Are Your Rights to Property after Separation?

Coping with the breakdown of a relationship is stressful and upsetting. If you share a home, it can be an even more challenging time. You will need to agree on who can remain in the property or if it should be sold and the proceeds split.

Whether you’re separating or divorcing, determining each party’s rights to the property after separation is not always straightforward. Do you know where you stand?

Your Rights to Property If You’re Getting Divorced

If you’re married and getting divorced, you are entitled to a share of the property. Regardless of who owns the marital home, both parties will have a legal right to it after separation. If, for example, the mortgage is in your name and your partner contributed to bills, both have rights to the property after you separate. These matrimonial home rights are granted automatically when two people enter into marriage.

However, complications can arise when the sole owner of the property attempts to sell it without the consent of their spouse. This would make the non-owning spouse homeless. To prevent this, the non-owning spouse may choose to register their matrimonial home rights with HM Land Registry by placing a written notice on the Title Deeds. If the property is owned by one spouse and another party who would have to share the proceeds if the home was sold, the non-owning spouse is not eligible for home rights.

It is possible for the spouse who owns the property to apply to the Land Registry to remove a notice of marital home rights, but under very specific circumstances:

- The death of the spouse or civil partner
- The official end of the union — receipt of a Decree Absolute or a Final Order
- The spouse who registered the Notice consents to its removal
- The Court grants an Order to remove the Notice.

There may also be grounds to remove the Notice if it was improperly registered, for example, if the property in question was never used as the marital home.

Until the divorce is finalised — when the decree absolute is received — both parties have the following rights under the Family Law Act 1996 (if home rights have been granted for the partner who does not own the property):

- The right to stay in your home (unless a court order is in place to prevent you from doing so).
- The right to request court permission to return to your home (if you have vacated the property).
- The right to be informed of any repossession action taken out by the mortgage lender.
- The right to pay the mortgage (if your former partner stops making payments, for example).
- The right to attend any mortgage possession proceedings taken out by the lender.

Home rights are designed to determine rights to a property after separation but before the divorce is finalised. The agreement reached as part of divorce proceedings will override home rights.

If the marital home is jointly owned, you will have to agree on what happens to the property during divorce proceedings. One party can buy the other out and remain living in the house, or the property can be sold and the proceeds split equally.

If You’re Unmarried and Separating

The law is less straightforward for unmarried couples that have shared a home and choose to separate. Contrary to popular belief, “common law marriage” does not exist in the UK. Regardless of how long you have lived with your partner, if your name is not on the mortgage, you have no right to the property after separation.

It may be possible to claim an “interest in the property” if you are not named on the mortgage but have been contributing to bills for multiple years. This could give you certain rights, but it is time-consuming, expensive and difficult to prove.

A cohabitation order is the only way to protect your rights to property as an unmarried couple. Provided this is properly effected, i.e. both parties receive independent legal advice, the agreement will be legally binding.

Regarding a joint mortgage and separation, if the home is co-owned, both parties have equal rights to it after separation.

Paying the Mortgage after Separation

How do you deal with a joint mortgage after separation? Perhaps one person moves out, and the other remains in the home. Do both parties have the same obligation to continue paying the mortgage?

There are several ways to deal with a joint mortgage separation:

Sell your property

Sell your home, pay off the mortgage balance and split the proceeds between you.

One party buys the other out

If one person has the means — either cash or eligibility for a sufficient loan — to pay the other their share of the equity in the house, they can buy them out and take sole ownership of the property. If you lack the means to buy your partner out, you could consider a guarantor mortgage, whereby a friend or family member agrees to make the mortgage repayments if you ever fail to do so.

Continue making payments

If you have a lot of equity in the home and a very small outstanding mortgage balance, it may be worth both parties continuing to make monthly payments. You can then sell the property when the balance is cleared.

Transfer a stake in the property

The partner who remains in the property could assume ownership of the majority of the property, and the departing partner could retain a smaller stake in the property. If both parties ever agree to sell the home, they would each get a percentage of the proceeds.

If either partner ceases mortgage repayments after separation, the lender has the right to pursue any arrears that accrue, which could lead to repossession of the property if no action is taken to cover the missed payments. If you share a mortgage with your ex, you are financially connected until one or both of you are removed from the loan. Skipping payments could negatively impact both of your credit scores, which may make it harder for you to purchase another property in the future.

If You Have a Civil Partnership

Both civil partners have a right to the home after separation, regardless of whether both of you or only one party is named on the mortgage — unless a court order states otherwise.

If a separating couple cannot agree on what happens to the home, this can be decided by the court as part of the dissolution of the civil partnership.

Other Factors to Consider

If there are children involved, the “primary caregiver” has the right to remain in the family home when a married or unmarried couple separates. If a separating couple cannot agree on who this is, a court will decide. The other party retains their home rights even if they leave the property.

If the cohabiting or married couple rented their property, each party’s rights to the home after separation would depend on the type of tenancy agreement you have. The Citizens Advice Bureau can advise you on your rights and what you can do if there is a disagreement about who stays in the property.

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A Quick and Hassle-Free Solution

Separation is often an emotional and difficult time, even if it is mutually agreed upon and amicable. Drawing out the process with lengthy legal battles over property can exacerbate the situation and cause more distress and upset, especially if there are children involved.

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Chris

Chris has worked in property all his career, first as a successful estate agent before spotting a gap in the market for buying property directly from people looking for a simple, quick sale.

He has a passion for property and as an experienced valuer, has looked at well over 50,000 properties so far at HBB. He has extensive experience in property buying and regularly comments in the press on property matters, trends and promotes ways to simplify and speed up the selling process.

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