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 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, provided your partner has applied for “home rights” with HM Land Registry. If you own the property with someone else and would have to share the proceeds if the home was sold, your partner is not eligible for home rights.
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 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 a property as an unmarried couple. Provided this is properly effected — both parties receive independent legal advice — the agreement will be legally binding.
If the home is jointly owned, both parties have equal rights to it after separation.
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 will 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.
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.
House Buyer Bureau is a genuine cash buyer with the funds to buy your property regardless of type, condition or location. We can offer completion in as little as seven days after a formal offer is made. We put you in control and can agree on a timescale that suits your needs.