Separation, whether through a separation agreement or divorce, often entails emotional challenges. Amidst this, couples must navigate the division of assets, including finances and the marital home. However, understanding your property rights post-separation is crucial.
Determining ownership of the marital home can pose challenges, especially in cases involving children or if your name is not on the mortgage or lease. Property rights can be equally complex for unmarried couples. If you’ve cohabited with a partner for an extended period, contributing to household expenses and payments, questions arise about entitlement to the home upon separation.
This blog post explores everything you need to know about property rights following a separation, whether you’re married or in an unmarried relationship, to help clarify your rights and options during this challenging time.
Rights to Property after Separation: When You’re Married and Getting a Divorce
Marriage offers the advantage of entitlement to a share of property in the event of divorce or separation. When married, both partners gain rights to certain assets, and many couples accumulate various joint assets during their relationship. This encompasses not only the marital home but also joint bank accounts and pension contributions. The complexity can increase significantly in cases involving high-net-worth individuals.
Importantly, legal ownership of a property is not necessary to establish a legal right to it after separation. For instance, if you contribute to household expenses while your spouse’s name is on the mortgage, you still hold rights to a share of the property.
To safeguard your financial interest in the matrimonial home, you can register your rights with the Land Registry. This registration prevents the home from being sold, transferred, or mortgaged without your knowledge.
Under the Family Law Act 1996, you have specific home rights, including:
- The right to remain in your home unless a court order states otherwise
- The right to request court permission to return to your home if you have moved out
- The right to be informed of any repossession actions initiated by your mortgage lender
- The right to participate in any mortgage possession proceedings initiated by your lender
- The right to cover the mortgage payments if the other party ceases payment.
These home rights remain in effect until the divorce is finalised, during which asset division discussions, including the marital home, will take place.
Rights to Property Where Children Are Involved
The question of who retains the house in a divorce or separation becomes particularly intricate when children are involved. For children, divorce is a significant life event that demands sensitive handling to prioritise their well-being.
In such cases, the “primary caregiver” — the parent responsible for the majority of childcare—typically retains the family home. This determination is generally easier if a separation agreement is already in effect and you and your spouse are living separately. However, if you are newly separated and have jointly raised your children, deciding who keeps the home becomes a matter for the parents to resolve. It’s important to note that the other party retains their rights to the home, as previously outlined. If you and your spouse cannot reach an agreement, the court will intervene to decide based on the best interests of the child(ren).
In making this decision, the court aims to minimise emotional distress and upheaval for the child. Additionally, one parent might be granted rights to the home but could forfeit their entitlement to an equal division of other marital assets. Therefore, it is crucial to seek guidance from an experienced family solicitor who can provide advice and secure a fair resolution for all parties involved.
Rights to Property after Separation: When Both Parties Own the Home
If both parties are named in the tenancy agreement and thus jointly “own” the home, each has an equal right to it. However, during a divorce, it’s typically undesirable for both spouses to continue residing together in the same home. Even if you decide to vacate the property, you still retain ownership rights. Here are several ways this situation can be addressed:
- One party may opt to “buy out” the other’s share of the property.
- The house can be sold, and the proceeds from the sale are divided equally between the parties.
- In cases involving children, the individual remaining in the home might have the opportunity to “buy out” the other party’s share once the children reach adulthood.
When a couple rents a property and one spouse remains while the other departs, it’s crucial to remove the departing spouse’s name from the tenancy agreement. This action ensures that one party assumes sole responsibility for rent payments and prevents termination of the tenancy if the departing party serves notice to vacate. In rental agreements involving couples, one party can provide notice on behalf of both individuals. Removing a name from the tenancy prevents the landlord from assuming that both parties wish to terminate the agreement, thereby safeguarding against potential homelessness.
Rights to Property after Separation: When You Aren’t Married
The rights to property after separation differ significantly when a couple is not married. In such cases, separation entails a decision to part ways. However, when a couple has lived together and one party has contributed to rent and bills, determining their rights to the home can become complex.
Whether a couple has cohabited for a short period or several years, the absence of marriage can pose challenges in the event of a breakup. Regardless of the duration of the relationship, if your name is not on the tenancy or mortgage agreement, you do not possess a legal entitlement to the home.
However, the situation is not entirely straightforward. An individual may have certain entitlements if they can demonstrate an “interest” in the property.
For instance, suppose a couple has lived together for three years. One partner owns the home and is listed on the mortgage, while the other partner pays the bills. In the event of a separation, the homeowner has a stronger claim to the property. The non-homeowner may pursue a claim in court, but this process can be lengthy, costly, and challenging to substantiate.
If you have been contributing towards the mortgage payments without formal documentation, you may still be able to establish an “interest” in the property. It’s crucial to seek legal counsel from a professional solicitor to understand your potential entitlements following a separation.
In any circumstance, we strongly recommend establishing a cohabitation agreement to safeguard your assets in the future, especially if you plan to live with a new partner. This agreement protects your property rights after a separation and outlines how the property and joint savings will be divided.
If you are experiencing a separation or divorce and have questions about your rights to the home, it is crucial to seek professional legal advice to safeguard your interests and ensure that you are not unfairly displaced from your residence when you have a legal entitlement to remain.
DLS Solicitors is a reputable firm of experienced family lawyers based in Manchester. Contact us to learn how we can assist you through a consultation.
