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Joint mortgages separation

Joint mortgage after separation: What are my rights?

published: 07 January 2022
Read time: 5 minutes

Relationship break down is stressful and having a joint mortgage can make things more complicated. Our guide covers how a joint mortgage separation works and your rights

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. When 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 – regardless of whether you still live in the property. 

You will need to make sure you keep up with any repayments you are legally obliged to make, as if you fall behind on mortgage payments, this will negatively impact your credit score – and that of your ex-partner.

Man using laptop

What are my options for a joint mortgage during a separation?

If you have a joint mortgage and you’re going through a separation there will typically be a number of different options to consider, such as:  

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

  • Stake in the property: You could transfer a part of the home’s property so one of you would own most of the property, but the other would retain a stake in the home. This means the other person would be entitled to a percentage of the value when the property is sold in the future 

  • Pay off the mortgage: If you’ve nearly paid off your mortgage and your divorce/separation is amicable, it may be best for you both to continue paying off the mortgage until it’s paid off completely. 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 like a family member agrees to cover the mortgage repayment costs in the event you run into difficulties and cannot pay 

Can I stop paying the mortgage after separation?

While divorce or separation can be an emotional time, 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.  

joint mortgage means you’re both liable for the mortgage debt until it has been completely paid off - regardless of whether you still live in the property.

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.

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 – including 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 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. 

If you’re going through a divorce or separation and your property is in negative equity, 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 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 being sold for a set time, usually because the couple separating still have children living in the home.

If you take out a Mesher order, one of you can stay in the property with the children until a certain point – usually 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 person is currently living in the property.

Martin order 

A Martin order is similar to a Mesher order, but children aren’t usually involved.

In this case, one of you could stay in the property for the rest of your life – and the home would not be sold until that person moves out, remarries or passes away. This is provided 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 partners 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.  

If you’ve paid towards the mortgage or towards home improvements, you may be able to claim for a ‘beneficial interest’.’ For example, 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, you might have a beneficial interest. But unfortunately, making a financial contribution doesn’t automatically entitle you to a share in the property.

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 an independent financial or legal adviser, or a divorce lawyer, so 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

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