Property money matters in divorce

Row of terraced housing

A key consideration when you get a divorce or dissolve a civil partnership is what will happen with the family home.

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What happens to the family home on divorce?

A key consideration when you get a divorce or dissolve a Civil Partnership in England or Wales is what will happen with the family home and who will remain in it, particularly if you have children.

Who has the legal right to continue living in the family home and its future ownership are important considerations in any break up. In deciding what happens, the first consideration is if there are any children. The children’s welfare is what is most important, not only for any children under 18 but also children over 18 who may be in full time education or training.

Divorce options for dealing with a home you own

The family home may be a property that is owned by one person alone or by both of you jointly. If you own the property jointly, this could either be as Joint Tenants or as Tenants in Common. It is important that you establish which it is and our Divorce Solicitors can help you with this.

Joint tenants in divorce

Under a joint tenancy it is presumed that you own the property equally, however it’s important to note that the Court can vary these shares in a divorce depending upon the particular circumstances of your case.

You should consider whether you want to sever the joint tenancy following your separation. This would prevent your share of the property passing to your former partner if you died and vice versa. Property held as joint tenants automatically passes to the surviving joint tenant regardless of what is stated in your Will.

Tenants in common in divorce

As Tenants in Common, you own a property in separate shares of potentially differing amounts such as 70% / 30%. When you bought the property, your Solicitor may have drawn up a Trust Deed or Declaration of Trust outlining how much you each own.

There is no automatic right for the property to pass to the other joint owner on death. Instead the interest in the property passes under your Will or, if there is no Will, under the Intestacy Laws which set out what happens when someone dies without a valid Will.

Who is responsible for paying the mortgage on divorce?

(Please note that Jointly and Severally is a legal term meaning that two or more people are fully responsible equally for the liability).

All parties to the mortgage are jointly and severally responsible for making the mortgage payments. This means that if one person stops paying the mortgage or makes a reduced payment, the mortgage provider can seek to recover the balance from the other person.

It’s very important to avoid mortgage arrears, you should try and agree to continue making the mortgage repayments regardless of who is staying in the property; and our Divorce Solicitors can help you with this.

Divorce options for dealing with a home you rent

One of the first things you must do if you separate is take the necessary steps to protect your home. This is particularly important if the property is rented in your ex-partner’s name only, or rented in joint names and you are worried that your ex might try to end the tenancy.

Can one partner end a joint tenancy?

You do not need the consent of both parties to end a joint tenancy and you can do this by serving a Notice to Quit without telling your spouse or partner.

Even if your partner moves out and you stay in the property, you should consider having the property transferred into your name only if possible. Not doing this could mean your partner could still end the tenancy in the future.

One way you could protect yourself is by asking your landlord to put the tenancy into your name only. This will depend on what type of tenancy agreement you have, and what type of landlord they are, such as a local authority, social landlord or private landlord.

If your landlord does agree, ask them to put it in writing before you give notice to quit the joint tenancy, if they don’t agree, you could consider transferring the tenancy; either way, it’s worth getting legal advice on protecting your position and our Divorce Solicitors offer initial advice.

What if the tenancy is in my partner’s name?

If only your partner’s name is on the tenancy agreement, they can evict you without a Court order, so long as they give you reasonable notice. This doesn’t have to be in writing and what is deemed as being 'reasonable' will depend on your individual circumstances, although normally it wouldn’t be any more that 28 days.

Alternatively, they may allow to you to stay in the property by agreeing to hand over the tenancy, which in some cases - and with some landlords - may be possible.

What if I’m the only person named on the tenancy?

If you’re the only person named on the rental agreement or the lease, you have the right to ask your partner to leave, as long as you give them reasonable notice. What is deemed 'reasonable' will depend on the circumstances. However, where a partner has been violent, you may be able to ask them to leave immediately.

If you want to leave the property but are happy for your partner to stay, you may be able to formally hand over the tenancy to them. However, you should get legal advice as to whether this is possible in your case.

If you leave without handing the tenancy over, this will effectively end it – allowing the landlord to take proceedings to remove your partner or agree to grant a new tenancy.

Can I protect my right to stay in the matrimonial home?

By applying for an Injunction you can protect your right to stay in the matrimonial home and stop your partner from ending the tenancy or giving you notice to quit.

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About Co-op Legal Services

The family law team at Co-op Legal Services includes specialist Family Solicitors, Divorce Solicitors and Children Law Solicitors with Resolution accreditation and accredited experts in child abduction, co-habitation, domestic abuse, property disputes, high net worth money matters and financial advocacy.

Resolution is a national organisation of Family Lawyers committed to non-confrontational divorce, separation and other family problems.

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As part of the Co-op Group, our values of openness, honesty, social responsibility and caring for others are core to the service we provide.

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