What are your property rights when your marriage breaks down?

Property rights

A divorce is difficult for everyone involved. There are many things to consider at the point of separation, and your property rights is one of the biggest!

Who owns your home?

Your home may be owned by you or your partner individually, or it may be owned jointly. If the property is solely in your partner’s name, but you believe you should have a legal property rights, you may be in a position to register your interest in it, which will help to get your position taken into consideration.

If your property is in England or Wales and is registered at the Land Registry, you can register your interest by filling in a matrimonial home rights notice on the government website. Once you’ve completed the form, your ex-partner will not be able to sell the property or apply for a larger mortgage without you being informed.

Jointly-owned property

If your property is jointly owned, you will either be ‘joint tenants’ or ‘tenants in common’ (your solicitor should have discussed this with you when you purchased the property):

  • Joint tenants own the property equally. When one partner dies, the other automatically inherits their share
  • Tenants in common own a percentage of the property each – this may be a straight 50/50 split, or one person’s share may be greater than the others – and when you die, your share of the property will pass to whoever you leave it to in your will

(If you’re unsure of how your property is owned, you can do a search with the land registry for £3)

If you are separating and are currently ‘joint tenants’, it may be worth looking at changing ownership to ‘tenants in common’ in order to make the separation more straight forward and to protect your share of the property. To do this is fairly simply – you just need to write to your ex-partner and tell them you want to sever the joint tenancy (they don’t have to agree to you doing this or give their permission), and then fill in an SEV form from the Land Registry.

Joint mortgage

If you’re named on the mortgage, you are legally liable for the full debt, even if the mortgage is in both of your names, so it’s important to make contact with your mortgage provider as soon as possible to explain the situation – especially if you have any doubts that your partner will continue to pay their share of the mortgage. The lender should be able to advise you regarding any help you may be entitled to with making the mortgage repayments or if you qualify for a payment holiday (usually if you’ve previously made over-payments).

How about if you live in rental property?

You should contact your landlord as soon as possible and explain the situation. If you have a joint tenancy agreement you may be able to transfer the tenancy into just your or your ex-partner’s name. While it is a joint tenancy you both have the right to continue living in the property and either of you can give notice to the landlord to end the tenancy.

If the tenancy is in your ex-partner’s name, they are responsible for paying the rent, but you have the right to continue living in the property while the tenancy exists and while you’re still married or in a civil partnership.

If the tenancy is in your ex-partner’s name and they choose to move out, you can continue paying the rent and remain in the property, but once your marriage or civil partnership ends you no longer have the right to stay in the property.

What if there are children involved?

If you have children, the court’s primary aim will be to ensure the children have a secure home and as little disruption as possible. This could mean that:

  • Ownership stays the same but one of you (the main carer) is given the right to stay in the property until the children reach 18
  • Ownership is transferred to one of you, but you get a smaller share of the other shared possessions being divided between you
  • The home is transferred to one of you but with a legal agreement that a percentage is given to the other partner when the property is sold
  • The home is sold and the proceeds are split between you so you can both have a fresh start

Regardless of your legal rights, make sure you put together a thorough budget so you know what you can afford in terms of mortgage or rental payments. Finding out you’re legally allowed to stay in the property may be a relief, but it may not always be the best decision for you – financially or emotionally.

If you’re not married but have been living with a partner, a court can still rule on your right to stay in the property – you can visit the citizen’s advice website for more information.

This content was written by Quick Move Now
Published on 6th October 2015
Last updated on 15th August 2018


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