Joint mortgage after separation: what are my rights?

Key takeaways

• If a partner opts out of a joint mortgage the remaining owner must prove they can afford repayments alone, which requires new affordability and eligibility checks

• During a divorce or separation, any outstanding mortgage debt may need to be divided between partners

• The only way for someone to be removed from a joint mortgage without permission is through a court order. If the home is in your ex-partner’s name, you may be able to claim a financial share if you’ve contributed to the mortgage or home improvements

Can a joint mortgage be paid by one person?

Yes, a joint mortgage can be paid by one owner only. Put simply, lenders won’t care who and how many people chip in to pay back a mortgage loan, as long as someone does. But that doesn’t change the fact that, in the lender’s eyes, liability for repaying the debt lies with both parties.

A joint mortgage paid by one person is more common than you may think. This could be the case of a parent who, for instance, becomes the joint owner of a mortgage to help their children get on the property ladder. The mortgage will then most likely be paid by one person only – the parent or the child.

The same could also happen with a couple or spouses. The mortgage may be under both names, but it could be that only one of the borrowers will cover the repayment costs.

Can a partner opt out of a joint mortgage?

Yes, this is possible too. However, if one person decides to leave the joint mortgage, it means that the other person will be the solely liable for the repayment of the mortgage loan. In this situation, it is likely that the lender will want to check that you are able to afford the repayments before they approve the change.

The person remaining on the mortgage agreement will need to go through all the affordability and eligibility checks again. Bear in mind that some of the criteria might have changed since the last checks. So there is a chance that you may find it more challenging to qualify for the mortgage as a sole borrower.

What happens to a joint mortgage if I separate from my partner?

Dealing with joint finances when you’re going through a separation or divorce can feel overwhelming and stressful, but it is important to know that if you separate from your partner and have a joint mortgage, you are both liable for the mortgage until it has been paid off in full. Bear in mind that this is regardless of whether you still live in the property or not.

You will need to make sure you keep up with any repayments that you are legally obliged to make. If you fall behind on mortgage payments, this will negatively impact your credit score and that of your ex-partner. In the worst case scenario you could lose your home.

What are my options if I have a joint mortgage and plan to separate?

If you have a joint mortgage and you’re going through a separation, there are a number of different options to consider. These include:

• Selling your home: You have the option to sell the property, pay off whatever remains of the mortgage, and split the rest of the money between you and your ex-partner. If you’re in negative equity (where your outstanding mortgage debt is higher than the value of your home), you may have to divide any outstanding debt between you. It may be best to talk to your lender to find out what your options are.

• Buy out your ex-partner: One person could choose to buy the other person out of the mortgage. However, you will need the money or the ability to borrow the cash to do so. You’ll need to prove to the mortgage lender that you can afford the repayments on your own.

• Stake in the property: You could transfer a share of the home so that one person owns the majority, while the other keeps a smaller stake. This means the other person would be entitled to an agreed percentage of the value when the property is sold in the future.

• Pay off the mortgage: If you’ve nearly paid off the mortgage and your divorce/separation is amicable, you could both to continue to pay the mortgage until it’s fully repaid. That way, you’ll be able to sell the home and split the proceeds afterwards.

• Get a guarantor: If you want to take over the whole mortgage but can’t afford the repayments on your own, you can apply for a guarantor mortgage. This is where someone (e.g. a family member) agrees to cover the mortgage repayment costs should you not be able to pay yourself.

Can I stop paying the mortgage after separation?

Divorce or separation can be an emotional time, but it’s important to keep on top of your mortgage repayments even if you’re still deciding what route you want to take with the property. 

A joint mortgage means you’re both liable for the mortgage debt until it has been completely paid off. If you miss a payment or fall behind on payments, it will negatively affect your credit score and that of your ex-partner. This is because while both of your names are still on the mortgage, you will still be financially linked.

If you are concerned you might miss mortgage payments, speak to your lender as soon as possible to explain the situation.

How do you separate when you have a mortgage together?

Separation is difficult enough without the added stress of having to work out how the mortgage will be paid and divided once one of you moves out. One option is to sell the home and split the proceeds, allowing you each to buy a home, although this may be unaffordable at a time of high house prices. Other options include:

Transfer of equity

Also known as buying out, this sees one of the parties on the mortgage buy out the other. This process will require you to have a valuation of your property, an affordability assessment for the party staying in the home and engaging solicitors in order to finalise the transfer of funds.

Partial transfer

This option allows you to transfer part of the ownership of the property to your ex-partner, agreed through mediation and solicitors. It means they will get a sum when the property is eventually sold, although it may not be the best bet if they do not have ready access to lots of money to finance the purchase of a new property.

What are my legal rights during a joint mortgage separation?

Your legal rights during a joint mortgage separation differ depending on whether you and your ex-partner are married or not. But if you’ve been in a relationship and lived with your partner for several years, contributing to bills and mortgage payments, this does have an impact on your rights. Here are how legal rights work during a joint mortgage separation:

Your legal rights if you were married

A big financial benefit of getting married is that if you get divorced or separate, both of you are entitled to a share of the property. Marriage entitles both of you to certain assets, with many couples having several joint assets over time. These include the marital home, joint bank accounts, and pension contributions. 

If you are married, you don’t have to have legally owned the property to have a legal right to it after separation. This means even if your ex-spouse's name is on the mortgage and yours isn’t, but you still contributed to bills, you still have rights to your share of the property.

Your legal rights if you weren’t married

Unfortunately, your legal rights to the property after separation differ if you weren’t married. Regardless of the length of the relationship and if you’ve contributed to mortgage costs or bills, if your name isn’t on the mortgage agreement, you have no legal right to the home.

That said, you may still have some entitlement even if your name isn’t on the mortgage agreement. This is known as an ‘interest’ in the property.

If you’ve been making payments towards the mortgage, you don’t need to have signed any official documentation to prove you have an ‘interest’ in the home. To know what you’re legally entitled to, it’s important to seek legal advice from a solicitor.

What happens if my ex-partner stops paying their share on a joint mortgage?

If your ex-partner stops paying their share on a joint mortgage, and their name is on the mortgage product, then the first thing you should do is contact your lender and explain the situation. All parties on a mortgage are liable for the debt owed. Lenders tend to show leniency in such situations and may even be willing to lower the monthly repayments or switch you to an interest-only mortgage for a brief period.

Doing so will then mean you can take legal and financial advice about the next steps, either through Citizens Advice or your own solicitor.

If your ex-partner is not listed on the mortgage and stops paying their share, they are not legally liable. Remember that if you are married and your partner isn’t listed on the product, they may still be entitled to some of the property after separation.

What should I do if the house is in negative equity?

Negative equity is when you owe more on your mortgage than your home is worth. Negative equity usually occurs when a homeowner has a large mortgage on the home and the property has fallen in value and is worth less than the mortgage.

If you’re going through a divorce or separation and your property is in negative equity, you are both jointly liable for the remaining amount on the mortgage and you may have to divide any outstanding debt between you. To make the right decision, speak to your lender to find out what your options are.

Can I postpone the selling of my jointly mortgaged home?

If you’re looking to postpone the selling of your home after a divorce or separation, and you live in England or Wales, you may look to take out a Mesher or Martin order:

Mesher order 

A Mesher order is a family court order that prevents the home from being sold for a set time. This is usually because the couple separating still have children living in the home.

If you take out a Mesher order, one of you can stay on the property with the children until a certain point. This is generally until the youngest child turns 18 or finishes secondary education, though sometimes it could be higher education.

The property stays in both owners’ names for this time, even if only one of them is currently living in the property, and the non-resident parent remains liable for the mortgage.

Martin order 

A Martin order is like a Mesher order, but is usually used when children aren’t involved.

It allows one person to stay on the property for the rest of their life. The home would not be sold until that person moves out, remarries, or passes away.

A Martin order will only be made if the other partner does not immediately need the money for their own needs. 

Can I be removed from my joint mortgage if I don’t give permission?

You can only be removed from your joint mortgage without permission in extreme circumstances. The only time your ex-partner could have you removed from the mortgage without your consent is if they applied for – and were granted – a court order to have you removed from the title deeds (and the mortgage).

Can I make a claim to the home if it is in my partner's name?

If the home is in your ex-partner's name, you may be able to claim a financial share of the property or the right to live in it.

This can apply to unmarried partners where only one name is on the deeds or mortgage.

If you’ve paid towards the mortgage or towards home improvements, you may be able to claim for a ‘beneficial interest’, which can apply if your ex-partner bought the home in their name but you had an understanding or agreement that you’d have a share in its value when the property was sold. But making a financial contribution doesn’t automatically entitle you to a share in the property.

Do I need a solicitor to buy someone out of a house?

It is highly advisable that both you and your ex-partner engage a solicitor when one if buying the other out of a house.

In order to carry out to this you will need to agree on the share of equity being transferred. If you have a joint tenancy agreement, partners are usually entitled to 50% each of the total equity.

Firstly you’ll need to get your property valued by an estate agent, as the value will almost have certainly changed since you bought or last remortgaged it. Then you need to contact your mortgage provider to get a redemption figure - this is the exact amount you still owe on the mortgage. At this point it is essential you explain that you plan to buy out your partner. If it’s just you who is going to have your name on the mortgage, then they are highly likely to carry out an affordability assessment before agreeing to the change. If a new name is being added to the mortgage, then that party will also be required to go through an affordability assessment.

The equity left in your home will be the total after subtracting your outstanding mortgage from the property’s new valuation. Then you need to decide how much your ex-partner will receive - this will usually be 50%, although you may require mediation or legal advice to reach an agreement.

At this point, conveyancing solicitors will arrange for the transfer of equity to the party being bought out.

What happens to my life insurance policy?

If you have a joint life insurance policy in place and you get divorced, one person may be able to take over the policy, with the second person taking out a new policy. However if you have a mortgage decreasing life insurance policy or a family level term policy in place under one person's name, you can usually change the name of the beneficiary after calling your provider.

Where can I access help?

If you’re looking for help or support with your joint mortgage separation, there are options available to help make the process feel as straightforward as possible.

You may want to talk to a financial adviser, legal adviser, or divorce lawyer. This way, you know exactly where you stand and what your rights are. Keep in mind you will need to pay for these services and they can be expensive.

Alternatively, charities such as Citizens Advice, StepChange, and National Debtline can offer free advice on any money concerns you have.

Other useful guides

Looking for more information on mortgages? Here are some related, useful guides:

• Joint tenancy mortgages

• Additional borrowing on your mortgage

• Mortgage advice 

Your home may be repossessed if you do not keep up repayments on your mortgage.

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Your home may be repossessed if you do not keep up repayments on your mortgage.