Updated October 2019
Separation — whether you opt for a separation agreement or a divorce — can be an emotional time. On top of this, couples need to decide how to split their assets, including money and the marital home. But what are your rights to property after a separation?
Deciding who gets the marital home can be difficult to agree on, especially if there are children involved or your name isn’t on the mortgage or rent payments. The matter of rights to property is equally as complicated if a couple isn’t married — if you’ve been in a relationship and lived with your partner for several years, contributing to bills and making payments, do you have any rights to the home when you split? This blog post delves into everything you need to know about your rights to property after separation.
Rights to Property after Separation: When You’re Married and Getting a Divorce
The benefit of getting married is that, in the event of a divorce or separation, you are entitled to a share of the property. Marriage entitles both parties to certain assets and many couples acquire several joint assets over the lifetime of a relationship. This includes the marital home, but also extends to joint bank accounts and pension contributions. The crucial point regarding property is that both parties do not have to legally own it to have a legal right to the property after separation. If, for example, your spouse’s name is on the mortgage and you simply contribute to bills, you still possess rights in the eyes of the law.
In this case, you can register your matrimonial home rights with the Land Registry. This protects your financial interest in the home, meaning the home cannot be sold, transferred or have a mortgage taken out on it without your knowledge.
The Family Law Act 1996 also grants the following home rights:
- The right to stay in your home unless a court order excludes it
- The right to ask the court to enable you to return to your home (if you have moved out)
- The right to know of any repossession action taken out by your mortgage lender
- The right to join any mortgage possession proceedings taken out by your lender
- The right to pay the mortgage, if the other party stops making the payments.
These home rights will apply until the divorce is concluded, by which point there will have been discussion over the division of assets, including the marital home.
Rights to Property Where Children Are Involved
The issue of who gets the house in a divorce or separation becomes even more complicated where there are children involved. Divorce is a stressful time for all, but, for children, it’s a life-altering experience that needs to be handled sensitively to ensure their best interests are always put first.
In these cases, the person considered to be the “primary care-giver”, that is, the person who looks after the children for the majority of time, gets to keep the family home. This is easier to establish if a Separation Agreement is in place and you and your spouse are already living apart, but if you’re only just separating and have brought your children up together, who will get the home? In this case, it’s down to the parents to come to an agreement. It’s important to note that the other party still maintains their home rights, as outlined above. If you and your spouse can’t make a decision, the court will make a decision based on what is best for the child(ren).
When making this decision, the court will seek to minimise the emotional trauma and stress to the child. To further complicate matters, one parent may be given rights to the home, but then forfeit their rights to an equal division of other assets accumulated during the marriage. This makes it vital to seek the advice of an experienced family solicitor, who will be able to advise you and secure a fair resolution.
Rights to Property after Separation: When Both Parties Own the Home
In the event that both parties “own” the home, in that both names are on the tenancy agreement, both have an equal right to the home, according to the law. However, if you’re going through a divorce, it’s unlikely you’ll want to stay in the home with your spouse. Even if you leave your home, you will still maintain ownership. There are multiple ways this can be resolved:
- One party has the option to “buy” the others’ share
- The house is sold and the proceeds split equally
- When children are involved, the person remaining in the home has the option to “buy” the other share when the children have grown up.
In the case where a couple rents a property, if one party stays in the marital home, it’s important that the other spouse’s name is removed from the tenancy. This ensures that one party is responsible for rent payments and prevents the tenancy from ending if the leaving party was to give a notice to quit. For couples, an individual can give notice on behalf of both parties. By removing the name from the tenancy, this prevents a landlord from assuming that both parties want to end the agreement — this will ensure you aren’t left without a home.
Rights to Property after Separation: When You Aren’t Married
Rights to property after separation differ when a couple isn’t married. In this case, separation simply means that a couple decide to go their separate ways. However, when a couple have been living together and one party has been contributing to rent and bills, it can get a little murky as to their rights to the home.
Whether a couple has been living together for six months or six years, not being married can cause problems in the event of a break-up. Regardless of the length of the relationship, if your name is not on the tenancy or mortgage agreement, you have no legal right to the home.
However, it’s not that black and white. An individual may have certain entitlements, if they can prove they have what is called an interest in the property.
In this case, the individual who does not own the home may have a right to stay in the short-term or even claim against equity in the property. Let’s say, for example, a couple have been living together for three years. One individual owns the home and has their name on the mortgage. The other party, however, pays the bills. In the event of a split, the individual whose name is on the mortgage will have a greater right to the home. The person whose name is not on the agreement could pursue the argument in court, but this can be time-consuming, costly and difficult to prove.
If you’ve been making payments towards the mortgage, you don’t need to have signed official documentation to prove that you have an “interest” in the home. It’s important to seek legal advice from a professional solicitor to see what you may be entitled to in the event of a separation.
In any case, we’d always recommend putting a Cohabitation Agreement in place to protect your assets in the future, in the event that you move in with a new partner. This will protect your rights to property after a separation and detail how the property will be split and how any joint savings will be distributed.
Are you going through a separation or divorce and wondering what your rights are to the home? It’s vital that you seek professional legal advice to protect your interests and ensure you aren’t pushed out of your home when you have a legal right to stay. KMJ Solicitors is a specialist firm of experienced family lawyers in London. Find out how we can help with a free, no-obligation consultation.