Divorce in Later Life – The Family Home

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Lorraine Harvey

Partner, Family Law

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Whether you’re separating earlier or later in life, the most valuable asset in a divorce is often your family home. But when you’re in the autumn of your life, there are some things to consider in a divorce, such as your mortgage capacity and your matrimonial home rights.

When dealing with the division of your assets collected during marriage, the starting point for the Courts is usually a 50/50 split. But dividing your assets equally doesn’t always mean a fair division of assets or that a division in this way will sufficiently meet your needs.

In the event that an equal division doesn’t meet your needs, you should get advice from a Divorce Solicitor.

Our helpful team of expert Divorce Solicitors here at Simpson Millar regularly deal with all matters arising from divorces. As such, we can look at all of your assets by providing financial details and how they can be divided so that you can be sure that your financial settlement is fair and will meet your needs.

Who Gets the House in Divorce?

Deciding who stays in your family home or if you both move out and sell the property can be difficult, especially if you’ve shared your home with your former partner for many years.

First of all, it is important to understand how you own your property, either as joint tenants or tenants in common, and how this will affect what you’re legally entitled to.

Joint Tenants

This means you jointly own the property with your former partner on a 50/50 basis and both of your names are on the Title Deeds and the mortgage.

When a property is owned as joint tenants there is a Right of Survivorship which means if one of you dies, the other will automatically get the remaining share of the home. This survivorship rule will apply no matter what is written in your Will.

A Right of Survivorship is usually asked at a time where the purchasers have large amounts of paperwork to get through and often couples will make a choice without much thought. However, the choice can have significant consequences in the long term if they continue to own that property at the time of one of their deaths.

When a property is owned as joint tenants, then both owners together own 100% of the property. Therefore, if one co-owner dies then the survivor will continue to own 100%.

The owners do not each own a distinct share as joint tenants and so the surviving co-owner inherits by law which is then known as survivorship (or the Right of Survivorship). The surviving co-owner will then be able to dispose of the property as they wish during their lifetime. If the co-owner chooses not to dispose of the property then this will pass under the terms of their own will on their death (or the Rules of Intestacy if no will has been made).

Tenants in Common

In this situation, you own the property with your former partner in equal or unequal shares, expressed as a percentage. This could be a 50/50 split or it may be different if a couple wished to split the property percentage to reflect different financial contributions.

There is no Right of Survivorship when you own a property as tenants in common, which means if one of you dies, that person’s  share will form part of their estate when they die and will be passed on in accordance with their Will. If you don’t have a Will, your share will pass in accordance with the Rules of Intestacy.

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Severing Joint Tenancy in Divorce

If you don’t want your former partner to inherit your share of the family home if you die before your divorce or separation is finalised, you could sever the joint tenancy.

You can sever the joint tenancy with or without the agreement of the other joint owner. If you choose to do this then you’ll both still be joint owners of the home, but rather than owning the property as joint tenants you will own the property as tenants in common in equal shares (50/50).

Once the joint tenancy is severed, if one of you dies, the other won’t automatically inherit your share but instead it will pass in accordance with your Will or the Intestacy Rules if you don’t have a Will.

It is important to understand that no matter who owns the property or how it is owned, the family home will be treated as a marital asset and ultimately it will be divided either as agreed, as advised or as directed by the Court.

This is also an important consideration for unmarried couples who may separate and decide to stay living in the same home or if you’re thinking about moving out before deciding what should happen with the property.

If you decide to sever the joint tenancy in separation or divorce, you should make a Will to deal with your share of the property and make sure it passes on to the person you choose.

What Happens If My Name Isn’t On The Mortgage?

When you enter a marriage or civil partnership, you will automatically get Matrimonial Home Rights which gives you a right to occupy the matrimonial home regardless of whose name the property is in.

These rights prevents you from being “evicted” from your own home and will only apply to a property that you use as the family home. This means that if your partner owns other properties, your matrimonial home rights only give you the right to stay in the one that you normally live in.

If you’re getting a divorce and your former partner who legally owns the family home wants to sell and you don’t, you can enter a Matrimonial Home Rights Notice.

Matrimonial Home Rights Notice

A Matrimonial Home Rights notice will be applied to the Title Deeds making it clear to any potential buyers that you are exercising your rights to occupy the property.

This doesn’t stop your partner from selling the home but the notice makes it unattractive to buyers and they will want the notice removed before buying the property.

A notice can be made through the application form HR1 which is available on the UK Government website.

Removing the Matrimonial Home Rights Notice

The notice can only be removed if:

  • Either the owner or the person who applied for the notice dies
  • Your divorce is finalised with your Decree Absolute

There is a Court Order to remove the notice, for example if the Court considers the notice has been used for financial gain or to frustrate a sale instead of protecting your right to remain living in in the property.

How Will Later Life Divorce Affect My Mortgage Capacity?

When divorcing in later life you need to think about how your age might affect your income and mortgage capacity.

Each mortgage lender will set its own age limit for applicants but whatever age you are, the most important thing is that you can show that you can afford the mortgage repayments.

We know that this might be difficult if your relationship has broken down later in life, as many people in your situation won’t have a mortgage raising capacity.

What You Can Do

If both you and your former partner are retired and the only asset is your family home, it may be sensible to sell the property and divide the proceeds so you can both rehouse yourselves. If you’ve lived there for decades, the property might be mortgage free anyway.

If you’ve been living in the same property for many years and your children have flown the nest, you may even consider downsizing so that you have a property that is more manageable in the later years of your life. This might even mean that you can buy the smaller property without a mortgage at all.

Everyone’s situation is different and there’s not one size that fits all, which is why we recommend getting legal advice from a Divorce Solicitor who can advise you based on your situation.

Whatever your situation is we can help you to find the best way of amicably bringing your relationship to an end while protecting your finances and assets for the rest of your life. Our expert legal advice will always be personal and tailored to you and your family.

We offer a variety of options for appointments including telephone and video calls - whatever suits you best. We’re here to support you and make the process as easy as possible for you. You will be fully supported throughout the divorce process and we will deal with your former partner or their Divorce Solicitor and the Court. This takes the pressure off you, so that you can take care of yourself and your family.

To contact one of our expert Divorce Solicitors, please call our friendly and helpful team today on 0808 239 3465 who will be more than happy to help. Alternatively, you can request a call back.

Related Articles


Simpson Millar LLP. (05/06/2019). What's the Difference Between a Decree Nisi and a Decree Absolute? [Online] Available at: https://www.simpsonmillar.co.uk/family-law-solicitors/divorce/whats-the-difference-between-a-decree-nisi-and-a-decree-absolute/ (Accessed: 20/12/2023).

UK Government. (n.d.). Make a Will. [Online] Available at: https://www.gov.uk/make-will (Accessed: 20/12/2023).

HM Land Registry Blog. (2022). What kind of joint ownership do I have? [Online] Available at: https://hmlandregistry.blog.gov.uk/2022/11/02/what-kind-of-joint-ownership-do-i-have/ (Accessed: 20/12/2023).

UK Government. (29/08/2023). Notice of Home Rights Registration (HR1). [Online] Available at: https://www.gov.uk/government/publications/notice-of-home-rights-registration-hr1 (Accessed: 20/12/2023).

The Gazette. (11/08/2020). Wills and Probate. [Online] Available at: https://www.thegazette.co.uk/wills-and-probate/content/103797 (Accessed: 20/12/2023).

UK Government. (n.d.). Joint Property Ownership. [Online] Available at: https://www.gov.uk/joint-property-ownership (Accessed: 20/12/2023).

UK Government. (n.d.). Inheritance Tax: How to Inherit if Someone Dies Without a Will. [Online] Available at: https://www.gov.uk/inherits-someone-dies-without-will (Accessed: 20/12/2023).

Lorraine Harvey

Partner, Family Law

Areas of Expertise:
Family Law

Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.

She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.

Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.

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