Cohabiting owner occupiers and sale or disposal of the home
The sale or disposal of the family home when a cohabiting couple split up depends on whether the home is jointly or solely owned.
Joint owners
Where a property is jointly owned both owners need to consent to its sale. A joint owner does not have to do anything to protect her/his property rights when her/his relationship breaks down.
Where one joint owner wishes to sell the property but does not have the consent of the other joint owner then s/he can raise an action of division and sale. There are two defences that the other owner can use to prevent the sale. S/he can propose a physical division of the property or buy the other party's share at an agreed price or at a value set by the court.
Where an order to sell has been granted, the court also orders the division of the sale proceeds. This will follow the division found in the title deeds, unless there is an agreement to do otherwise. If one of the parties has paid more than her/his share of joint and several obligations, for example a roof repair, s/he may receive a larger share of the proceeds than provided for in the title deeds.
Sole owner
Where a property is owned by one partner, it can be sold without the consent of the other partner. This is still the case even if the partner has been granted occupancy rights by the court. [1]
Granting a mortgage over the home
Where one partner owns the family home s/he is free to grant any mortgage over the home. There is no need for the consent of the other partner regardless of whether they have occupancy rights.
Last updated: 6 August 2020