What are my rights to property after separation?

If you’ve started the proceedings for a divorce or are separating from your spouse, the chances are you’ve built a home together during your relationship. It can be a tricky heart-wrenching process dividing up the assets that you’ve jointly owned over the period of your marriage, and property can in some cases be one of the most challenging. The family home will no doubt have sentimental value to the both of you, and if you have children, this can be even harder to leave the home where you raised them.

If you’d like to know more about rights to property after a separation, we’ll talk you through entitlement, ownership, cohabitation agreements and more, giving you a better understanding of the different options available. If you’d like to speak to a solicitor directly about your rights to property during divorce, please contact us to schedule an appointment.

Who is entitled to what?

Housing After DivorceIf you’re married, there’s a benefit in the fact that you are entitled to a share of the property, whether it’s technically owned by one person or jointly owned by both of you. If you do not own the property (your spouse’s name is the sole name on the mortgage), but you do contribute to the home in some way financially, you need to register your matrimonial home rights with Land Registry. This means that the owner is not able to make crucial decisions such as to sell or transfer ownership the house without your knowledge.

If you’ve just started the proceedings for a separation order or divorce and it hasn’t yet been finalised, it’s important to know your rights around your matrimonial home if you do not jointly own it. For example, the Family Law Act 1996 highlights that: you do have a right to stay in your home unless a court order states you must leave, you can ask the court to let you return to your home if you’ve already left and you have a right to continue paying the mortgage even if your spouse stops making payments. For more details, see the Family Law Act 1996.

If you do jointly own your property, the main thing to note is that legally, you both have an equal right to it and even if you choose to leave the property, you do not forfeit your ownership. There are a few different ways that jointly owned property can be dealt with during a divorce, but some of the most common resolutions include one party buys the other’s share, or the house is sold, and profits are equally split. This is not always the case, especially when children are involved which we address in the next section.

What about the children?

Housing After DivorceWhen there are children involved, this can complicate things a little more for the divorcing couple, as both parties are likely to want to be there and stay as involved as possible with their children. However, inevitably, when one spouse moves out, they don’t get the same contact with their children as they had previously. Due to this, some couples consider their property differently and the ways in which changes may affect the children. So, one way that it can be resolved is rather than sell the property and uproot the children from their home, some decide that the spouse who remains in the house has the option to buy the other’s share, but only when the children become adults. Generally speaking, the person who is responsible for the day-to-day care of the children will be entitled to stay in the marital home, as understandably, the children’s care and welfare is considered a top priority by the courts during a separation. Sometimes the family home is still sold and profits equally split, and in some cases, one party decides to walk away and leaves the house with their partner for the benefit of the children, but this is entirely at your discretion.

What if my partner solely owns the property and we’re not married?

We’ve previously touched upon some of the rights you have if you’re married and your partner owns the house, but what if you’re not married? If you’re cohabitating, there are some scenarios which you’ll need to bear in mind. For example, if the property is owned by your ex-partner, there is a chance that they can evict you without needing to get a court order, or rent/sell the home without your consent.

If, however, you’ve paid towards the mortgage or things like home improvements, you might be able to protect yourself by establishing an interest in the property. This can be a complicated process as rights are different depending on where abouts in the UK you are, so we recommend in this instance seeking the help of a solicitor. By establishing an interest, it means you have the right to continue living in the property, plus when it’s sold, you are entitled to a financial share.  

Cohabitation Agreements

Signing Divorce Settlement & Wedding Ring - LargeKeeping with the same topic as mentioned above, if you’re currently in a happy relationship but have no plans to marry and you’re living with your partner but it’s their house, you may want to pop a safety net in place just in case the relationship does break down. A cohabitation agreement is a legal document which essentially sets out who gets what if the relationship were to come to an end. As with many non-married serious relationships, it’s not just about the property, but things like joint savings, pets and contents of the home. A cohabitation agreement will set out how these types of assets are split, so you can rest assured if anything were to go wrong, your assets would be split as you both previously agreed. To apply for a cohabitation agreement, you will first need to both seek independent legal advice before proceeding to draft a binding document. Although this might pose a tricky subject to address with your spouse, if something were to go wrong it does protect you both.   

If you need any further advice or information around property rights during divorce, you may wish to schedule an appointment with our solicitors.