Following a separation or divorce, the biggest asset you are likely to have is your home. Among the stresses of a separation, you will need to address legal position of you and your former partner in relation to the property. It will be important to understand your housing rights and responsibilities if you are going through a separation.
Your housing rights and options
Your housing rights when separating will largely depend on a number of factors including:
- If you were married or in a civil partnership, or were an unmarried, cohabiting couple
- Who legally owns your home
- Whether you live in rented accommodation
- Where you live in the UK
When separating you and your ex-partner can choose how to work out property issues.
You can usually avoid going to court hearings if the both of you can agree how to split your money and property amicably. To make your agreement legally binding you can use a solicitor to help you with the paperwork.
A solicitor will draft a ‘consent order’ and ask a court to approve it to make it legally binding.
A consent order is a legal document that confirms your agreement. It explains how you’re going to divide up assets like:
- Money
- Property
- Savings
- Investments
- It can also include arrangements for maintenance payments, including child maintenance
There is also help available in agreeing on a settlement by:
- Working out your finances with a divorce and separation calculator
- Reading guidance to help you come to an agreement
- Using a mediator
- Contact Citizens Advice to enquire about any other help you can get
If children are involved
If you have children it is important that as parents you put their needs first and make sure that you have stability for both yourself and your children. Ideally you don’t want to cause too much disruption in their lives. The parent the children are living with usually get to stay in the house however this is not always the case.
Your housing rights depend on your individual living situation such as:
If you are renting
If your property is rented in joint names, you both have the contractual and legal right to remain in the home and both of you are liable for paying the rent.
If the tenancy agreement is only in one name, then that person is responsible for the rent, but both of you have the right to remain in the property while the tenancy agreement is still valid and you are still married or in a civil partnership.
However once your marriage or civil partnership is officially over, your right to stay in the property ends. Your partner must give you ‘reasonable notice’ to leave, which could be 28 days or less.
If you can come to an agreement that one of you will stay in the property and the other will move out, then you need to make sure you contact the landlord to end the current agreement so that a new one can be set up in the sole name of the partner who will be remaining there.
If the landlord does not agree to carry on renting the property to one of you then both of you will have to move out.
If you both cannot come to an agreement on who stays in the property then you may be able to get a court order transferring the tenancy agreement from one of you to the other, or from joint names to just one of you.
If only one of you owns the property
If the property is not in your name and only in your partner’s name, then you are less likely to have any right in the property. You are also less likely to share in the proceeds if the home is sold.
Your partner can ask you to leave however you must be given ‘reasonable notice’ to leave.
However, you might be able to protect your rights to the house by using a Home Rights Notice. This will prevent your partner from selling the property.
The only occasion where you have any right to the property even though your name isn’t on the mortgage is if you have contributed towards it in any way. For example, if you have paid towards the mortgage payments or if you have paid towards any other household bills.
A solicitor will be able to accurately advise you on your housing rights and where you stand.
If you both own the property together
If both of you own the property then you both have equal rights. Neither of you can sell the property unless you both agree. It may be possible for one of you to buy out the other’s share.
If you want to keep joint ownership of the property, you can change from joint tenants to tenants in common.
This enables both of you to own a different percentage of the property and you may get a bigger share if the children live with you.
It also means you can leave your share of the property to someone else in your will, rather than it all going automatically to your ex-partner.
Housing rights if unmarried
If you and your partner are not married then your rights are not as protected in the same way they are for married couples. The law treats unmarried couples as two separate individuals. This means that any assets such as property, bank accounts or investments will remain in the ownership of whoever’s name they are in. Assets that are held in joint names will generally be divided equally.
Upon separation, one person will usually buy the other out of the property by paying for the half share of the equity in the property and usually take on the outstanding mortgage. If this is not possible then the property will have to be sold so that each partner can retrieve his or her share of the asset.
If your partner owns the property but you have contributed to it then you may be able to obtain the right to live in the home or secure part of the proceeds when it’s sold, as long as you can demonstrate what you have contributed towards the house.
Your housing rights as an unmarried couple are along the similar lines if you are renting too. If the tenancy agreement only has your ex-partner’s name then you have no right to keep staying in the property regardless if you have been contributing to rent.
With a joint tenancy agreement both parties have rights. If one partner decides to move out then the landlord may be able to transfer the tenancy so that it is in solely in the remaining partners name.
Housing rights when separating from a partner is complicated to say the least therefore it is vital you seek legal help as soon as possible. A solicitor will be able to tell you about your housing rights and help you work out what your options are. Once you have this information, you can decide what the best course of action for you.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
