Protecting your home ownership rights during separation if you were cohabiting
If you are splitting up from your partner, but aren’t married or in a civil partnership, there may be steps you can take to protect your home rights. What you can do depends on who owns the property. Find out what steps you should take.
- How your home may be owned
- Property owned by one of you
- Property owned by both of you
- Should you change the ownership?
- Contacting your mortgage lender
How your home may be owned
You own your home (either all of it or part of it) if your name is on a legal document called the title deeds. It may be owned:
- by one of you, which means it’s in one of your names
- jointly, by both of you (and there are different forms of joint ownership)
- by someone else (such as a family member)
How you own your home may affect the steps you need to take in the early days.
Property owned by one of you
If your ex-partner owns the family home in their name alone, you do not have an automatic legal right to remain there.
- 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
Establishing your interest in the property
If you’ve paid towards the mortgage, or towards improvements or an extension, you may 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 whereabouts in the UK you live:
- In England or Wales: Whether or not you have made any financial contributions, you may 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, doesn’t automatically mean you’re entitled to a share in your ex-partner’s property. But you don’t necessarily need to have signed a formal legal document with your ex-partner to claim what’s called a ‘beneficial interest’ in the property.
- In Northern Ireland: You may be able to get an ‘occupation order’, but you would need to use a solicitor for this. You may 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 will mean the property cannot be sold without you being told.
- In Scotland: If you want to continue living in the family home or you think you’re entitled to a share in its value, you may 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, including whether you have children, anywhere else to live, and how long you’ve lived there. Your partner can object to you being given occupancy rights.
It’s a complex area and it’s a good idea to take 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, you can contact Shelter
- In Northern Ireland, you can contact the Housing Rights Service
- In Scotland, you can contact Shelter
Property owned by both of you
Your solicitor should have given you advice about the best way to own your home jointly at the time 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, no matter what’s said in their will or if they have a will at all.
- 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 (50:50) 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.
Many cohabiting couples own their property as ‘tenants in common’ (or joint owners in Scotland). However, not all do, so it’s best to check.
Finding out how your property is jointly owned
If you do not know how you own your home, you should try and find out. Where you do this depends on where in the UK you live.
- In England and Wales: If your home has been registered with the Land Registry you can do a search, which currently costs £3. If it is 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 Registers of Scotland website. There is a fee for this, which will generally be £11-£14 plus VAT.
Should you change the ownership?
If you own the property as joint tenants – or ‘joint owners with a survivorship destination’ in Scotland – you may want to change ownership to tenants in common, or ‘joint owners’ in Scotland. The reason to do 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 did change 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 around the UK.
Changing the ownership in England or Wales
This is called ‘severing the joint tenancy’ and is quite a straightforward process. All you have to do is 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 website.
Changing the ownership in Northern Ireland
You will need the help of 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 is not registered) or Registry of Deeds.
You will normally have to get your ex-partner to agree to you changing ownership from joint tenants to tenants in common. You will have to ask a solicitor to draft the new terms and to have this registered on the title of the property. You will have 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 the ownership in Scotland
Changing ownership from joint owners with a survivorship destination, to joint owners, is a very complicated procedure. It’s not something you should try and do without the advice of a family law solicitor.
Contacting your mortgage lender
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 may have problems paying the mortgage, or if you are worried that your ex-partner may not make payments they’ve agreed to.
The lender may be able to send you copies of statements. If it’s a joint mortgage, you should also see if you can stop your ex-partner from applying to increase the mortgage.
You may be entitled to help with mortgage payments if you’re on certain benefits. Read more in our guide Government help if you can’t pay your mortgage.