Joint Mortgage Separation Rights Explained

Sarah Rose
Family Law and Divorce Solicitor

If you have a joint mortgage with your partner, you both own a share of the property. This means you each have a right to remain in the property even if you’re separating. But you’ll both still be responsible for paying your share of the mortgage payments if one of you chooses to move out.

If you miss a mortgage payment, it could affect yours and your ex-partner’s credit rating. This might bring up more issues with mortgage lenders if you’re looking to buy a new home in the future.

And things might become even more complicated if:

  • You both want to stay in the family home
  • One of you has moved out but doesn’t want to pay for your half of the mortgage anymore
  • You want to stay in the family home but can’t afford to pay the mortgage alone

If you and your ex can’t agree about what should happen to your family home in separation or divorce, it’s important that you try and make decisions informally or through mediation. Because if your issues go to Court and the Court has to decide for you, things can become very time consuming and expensive.

Our Divorce Solicitors can help resolve tensions between you and your ex. We understand that your family home might mean a lot to you, so we will work with you to reach the best outcome for you and your family.

For initial legal advice get in touch with our Divorce Solicitors.

Call us on 0808 239 3465 or request a callback

Divorce is an emotional time for most people and the stress of dividing all of the finances that you might have once shared can be even more daunting. We’ve listed some of your options for dealing with your joint mortgage while separating:

  1. Sell Your Home

If you’re coming towards the end of your mortgage, it might work best for you both to pay the mortgage off, sell the property and split the sale value. If you still have quite a few payments to make on the mortgage, then you could sell the home and split the debt. But this might not be ideal. Speak to your mortgage lender to find out if you can transfer your mortgage to a different property. Your mortgage lender will be able to discuss all of your options with you.

  1. Transfer the Mortgage

If you’re both happy to do so, then one of you can transfer the mortgage into the other person’s sole name. This will only work if the person who the mortgage is being transferred to can afford to make the mortgage payments alone.

  1. Transfer Part of the Mortgage

You could transfer a part of your mortgage into the other person’s name but still keep a stake in the property. This means that if the person whose name the majority of the mortgage is in ever chooses to sell, the other person will be entitled to some of the sale value. This might work for you if you are happy to pay a part of the mortgage payments, for example if your children still live in the family home with your ex.

  1. Buy Out Your Ex-Partner

If you can show your mortgage lender that you can afford to pay the mortgage alone, then you could buy your partner out of the property. This will mean offering your ex a lump sum of money in exchange for you to carry on living in the family home.

Can’t Afford to Pay the Mortgage Alone?

If you can’t afford to pay the mortgage alone, but want to stay in the family home, speak to your mortgage lender. You might be able to remortgage so that your monthly mortgage payments are cheaper, or a family member could act as your guarantor to cover the costs if you fail to make a mortgage payment.

We recommend you speak to one of our expert Conveyancing Solicitors if you need additional help with selling, buying or remortgaging a property alongside your separation.

We understand that finances are often tight during separation. And if you’re applying for a divorce too, you might be worried about the costs of legal fees on top of paying for a property alone or paying for a home you no longer live in.

We offer a Fixed Fee Divorce for £600 including VAT, so you won’t have to worry about divorce costs as well as handling a mortgage on your own. Ask us for more details.

Taking a Family Home Dispute to Court

If you cannot agree on what is going to happen to the family home when you’re separating, you could try mediation. This is where you sit in one room and your ex sits in a different room and the mediator goes between you in an attempt to help you reach an agreement in an informal and conversational setting.

If this doesn’t work and you feel like your issues need to be settled in the Family Court, you should get legal advice. Our Divorce Solicitors can represent you in Court or just advise you where you need it.

Court Orders to Stay in the Family Home

If the mortgage is in both of your names but one of you wants to stay in the home you could get a Court Order that will make your agreement legally binding. The Court might issue a:

  • Mesher Order - This means the family home will not be sold for a certain period of time or until a trigger event happens, for example when your youngest child turns 18. After the trigger event, the property must be sold and you will split the proceeds between you. The property may stay in both of your names as will the mortgage, but this does not mean the non-occupying spouse will still have to contribute towards the monthly repayments. It is also possible for the home to be transferred into the occupying spouse’s name and the non-occupying spouse takes a charge over it. The Court will often only use a Mesher Order where there are young children involved.
  • Martin Order - This is where there are no children but one of you continues to live in the property, thus postponing the sale until you remarry or die. A Martin Order will normally only be used if the person who has moved out doesn’t need the money from the property in order to buy a new home.

The Court will consider what is in the best interests of your children, if you have them, and what would be best for both parties financially.

If you’re not married then dividing assets might be less complicated, but you won’t have the same matrimonial home rights to the property that you would if you were married. But if the mortgage is in both of your names then this shouldn’t matter, as you’re both entitled to a share of the property.

Speak to a Divorce Solicitor

When you’re separating, the added stress of having to move out of your home can be difficult. And if you’re paying for an old property alongside you’re new home, we understand how frustrated you might feel.

Our Divorce Solicitors have years of experience in dealing with all kinds of divorce cases involving property, so we know that each situation is unique and we will tailor our legal advice to you and your family. We can provide you with as much or as little help as you need and will always handle your situation sensitively.

Many of our Divorce Solicitors and Lawyers are members of Resolution, which means we are experts in reducing conflict between couples going through separation and divorce.

For initial legal advice call our Family Law and Divorce Solicitors

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