Property Rights after a Separation

If you and your spouse or partner are looking to separate, you will likely be concerned about what your property rights after a separation are. Our expert, Sarah Power from Chadwick Lawrence looks at whether you can stay in your home and what might happen next. A lot will depend on whether you are married and whether you are registered as a joint owner.

Property Rights If You Are Married

If you are married, then all the assets owned by you and your spouse are matrimonial assets and you are entitled to your share. You do not have to be a registered owner of the property or any other valuable asset for it to be shared. This extends to savings, inheritance, and pensions.

If you leave the property, you are advised to protect your property rights if you are not a named owner. This is done by registering your interest with HM Land Registry, which can be done on your behalf by a family law solicitor. This will prevent the property from being mortgaged or sold without your knowledge.

You also have the right to stay in your home, unless a court orders otherwise, and the right to ask a court to order that you can return to your home if you have left it.

You are entitled to know if your lender is commencing repossession proceedings and you have the right to make mortgage payments, should your spouse stop paying.

If there are children of the relationship, then it is usually the case that the person who will have the main day-to-day care of them will stay in the family home. In this case, ownership can be dealt with in a variety of ways.

The partner leaving the property could receive a larger share of other assets to compensate them, for example, pension monies or investments. The partner staying could take out a mortgage to buy out the other share. Alternatively, the court could order that a sale be delayed until the children have reached 18, at which time the sale proceeds could be shared.

Property Rights If You Are Unmarried

If you are not married but are a registered owner, then you are entitled to your share of the property or any sale proceeds. This could be half or, if you hold the property as tenants in common, the share specified in your agreement.

If you are not married and not a registered owner of the property, the situation is more difficult. You will not generally have any right to the property or sale proceeds unless you agreed that you were to have an interest in the property. This can be difficult to prove in court however and it is best to avoid ending up in this situation if possible.

If you are cohabiting but do not have a legal interest in a shared property, you are advised to seek legal advice and take steps to secure your position.

Separation Agreements

If you are separating, you can consider putting a separation agreement in place. This will include details you have agreed on and can be a useful document to have pending a divorce.

You can put anything you want in a separation agreement. Clauses that are often included relate to who will pay bills and accept liability for debts, what maintenance will be paid, how assets will be shared and what will happen to the property.

You can set out who will live in the property, who will pay the mortgage and other outgoings, and how any sale or transfer will be dealt with.

While a separation agreement is not legally binding, where it has been professionally drafted and both parties have taken independent legal advice before signing, the courts are likely to follow what you have agreed upon in making an order.

If you would like to speak to Sarah in confidence you can email her at: SarahPower@chadlaw.co.uk