Protecting your home ownership rights during separation if you were living together

You own your home – either all or part of it – if your name is on a legal document called the title deeds.

It might be owned:

• by one of you – which means it’s in one of your names
• jointly, by both of you – there are different forms of joint ownership
• by someone else – for example, a family member.

How you own your home might what you do in the early days.

If your ex-partner owns the family home in their name alone, you don’t have an automatic legal right to stay there.

They can:

• evict you without getting a court order
• rent out or sell the home without your agreement
• take out a loan against the property without your consent.

If you’ve paid towards the mortgage, or towards improvements or an extension, you might be able to establish an interest in your home.

This means that the court recognises you have the right to:

• continue living in the property
• a share in its value when it’s sold.

Your rights to the property – and what you have to do to register them – depend on where you live in the UK.

Whether or not you’ve made any financial contributions, you might be able to get an ‘occupation order’. But you would need to use a solicitor for this. Just because you’ve contributed towards the mortgage, it doesn’t automatically mean you’re entitled to a share in your ex-partner’s property. But you don’t need to have signed a formal legal document with your ex-partner to claim what’s called a ‘beneficial interest’ in the property.

You might be able to get an ‘occupation order’, but you would need to use a solicitor for this. You might also be able to register a caution (or ‘Lis pendens’) with the relevant Land and Property Registry if you believe you have an interest in the property. This means the property can’t be sold without you being told.

If you want to continue living in the family home – or you think you’re entitled to a share in its value – you might be able to apply to the court to get ‘occupancy rights’. It’s not an automatic process. Instead, the court will take into account a range of factors. These include

• whether you have children
• if you have anywhere else to live
• how long you’ve lived there.

Your partner can object to you being given occupancy rights.

This is a complex area and it’s a good idea to get advice from a solicitor who specialises in the breakdown of cohabiting relationships.

You can also talk to an adviser from a housing rights charity:

• In England or Wales, contact ShelterOpens in a new window
• In Northern Ireland, contact the Housing Rights Service
• In Scotland, contact Shelter Scotland

Your solicitor should have advised you about the best way to own your home jointly when you bought it.

The two options for this are as:

• Joint tenants – called joint owners with a survivorship destination in Scotland. This is where you own the property equally between you. When one of you dies, the other inherits their share – regardless of what’s said in their will, if they have one.
• Tenants in common – called joint owners in Scotland. This is where you each own a share in the property. You can split ownership equally between you, or you can decide that one of you will own more than the other. Your share of the property will pass to whoever you leave it to in your will.

If you don’t know how you own your home, it’s worth trying to find out.

Where you do this depends on where in the UK you live.

• In England and Wales: If your home is registered with the Land Registry you can do a search, which costs £3. If it’s owned as ‘tenants in common’, it will have the words ‘Form A restriction’ next to the ownership information.
• In Northern Ireland: You can find out how your home is owned by searching one of the three Land and Property Registries. Find out how to search these on the NI Direct website
• In Scotland: You can find out how your home is owned by doing a property search on the Register of ScotlandOpens in a new window website. There is a fee for this, which is £3, plus VAT on the land register or on the sasine register £30, plus VAT.  

Do you own the property as joint tenants (or ‘joint owners with a survivorship destination’ in Scotland)? If so, you might want to change ownership to tenants in common (or ‘joint owners’ in Scotland).

This is in case you die before the break-up is finalised.

If you did die before you’d agreed what to do with the family home, your share in the property would pass to your ex-partner.

If you changed the ownership, it would mean you wouldn’t automatically inherit your partner’s share if they died before you finalised the break-up.

The process of changing ownership varies depending on where you live in the UK.

This is called ‘severing the joint tenancy’ and is quite straightforward.

First, you need to write to your partner and tell them that you want to sever the joint tenancy. They don’t have to agree to you doing this.

If the property is registered with the Land Registry, you can fill in a form called SEV, which you can download from the Land Registry websiteOpens in a new window

You’ll need a solicitor if you want to change ownership from joint tenants to tenants in common.

The process will depend on whether your property is registered with the Land Registry (around 25% of land in Northern Ireland isn’t registered) or Registry of Deeds.

You’ll usually have to get your ex-partner to agree to you changing ownership from joint tenants to tenants in common.

You’ll have to ask a solicitor to draft the new terms and have this registered on the title of the property.

You need to pay a fee to the Land Registry or Registry of Deeds to change the ownership. Your solicitor will also usually charge a fee.

Changing ownership from joint owners with a survivorship destination to joint owners is complicated.

It’s not something you should try and do without the advice of a family law solicitor.

If your name is on the mortgage, you’re liable for the whole debt – even if it’s a joint mortgage with others.

Contact your mortgage lender if:

• you think you might have problems paying the mortgage, or
• if you’re worried that your ex-partner might not make payments they’ve agreed to.

Your lender might be able to send you copies of statements.

If it’s a joint mortgage, it’s worth also seeing if you can stop your ex-partner from applying to increase the mortgage.

You might qualify for help with mortgage payments if you’re on certain benefits.