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Staying in the family home in the long term

This page looks at your options if you and your ex-partner have decided not to sell the family home and need to decide who will remain living there. Some of the options involve going to court, others do not. If you're not married or in a civil partnership, your options will be more limited.

This page only offers an introductory guide to the law. Remember, legal action can be expensive and upsetting, so it's usually best to try and resolve things between yourselves before resorting to the courts.

Can I prevent my partner selling our home?

This will depend on who owns the property and whether or not you are married or in a civil partnership. Read the page on selling the family home to find out your rights.

Do we need to go to court?

It may be possible to come to an agreement with your spouse or partner about the future of your home without involving the courts. This will save you money, as court proceedings can be expensive, and will probably mean that you can sort things out and move on more quickly.

Can we get help to make decisions?

Make sure you speak to your solicitor before coming to any decisions. If you are feeling upset or bitter about your relationship breakdown, you may find yourself making a decision you later regret. Your solicitor can help you come to an agreement that makes sound financial sense.

Mediation can help couples who have decided to split up to come to a arrangement about the family home, financial issues and care of children without involving the courts. You should still discuss the outcome of any mediation sessions with a solicitor before coming to a final agreement.

What are our options?

We are joint owners

If you and your spouse or partner own your home jointly, you may agree that one of you will buy the other's share and be registered as the sole owner. In this case, you'll need to get your home valued by an independent valuer or surveyor, to ensure you set a fair price.

If you have a joint mortgage, you will need to transfer it to the new sole owner, otherwise the other person will continue to be jointly and severally liable for all of the mortgage payments. You'll need to speak to your mortgage lender about this, as they'll only agree to the transfer if they believe you'll be able to keep up the payments. You may need to get a further advance on the mortgage to pay the other owner their share - again, speak to your mortgage lender about this.

We are married

If you want to get a simple 'do it yourself' divorce, you'll need to come to an agreement over the division of your money and property without asking the courts to intervene. It's important that you get legal and financial advice before making any decisions.

We are in a civil partnership

If you are applying to the court to get your civil partnership dissolved, you may wish to come to a mutual decision over how you will divide your money and property. However, the court will not grant the dissolution unless it is satisfied that the financial arrangements are fair.

We live together and one of us is the sole owner

If only one of you is the legal owner of the home, they have the right to sell it at any time, regardless of whether the non-owner had occupancy rights. Therefore it's unlikely that the non-owner will be able to stay in the home long term without the agreement of the owner.

What decisions can the court make if we are joint owners?

If you own your home jointly and can't agree on who should stay or whether the property should be sold, you may be able to get a court order to decide:

  • who can stay in the short term
  • whether the property should be sold or not
  • if the property isn't sold, who can stay on in the long term
  • what financial share of the property each joint owner is entitled to.

How will the court decide?

The court's decision will normally depend on whether you are married or living together and whether you have children.

We are married

In this case, these decisions will be made as part of the divorce proceedings. See 'what decisions can the court make if we're married'.

We are in a civil partnership

If you are getting your partnership dissolved, the court can make these decisions as part of the dissolution process (see 'what decisions can the court make if we are civil partners').

We are living together and have children

These orders can also be made if you are living together and have children, but only if the order would be in the best interests of the children.

We are living together but don't have children

If you are living together but don't have children, the court can't transfer ownership into one person's name. However, it can order:

  • who can live in the property, or
  • that the property has to be sold, or
  • that the property cannot be sold yet.

What decisions can the court make if we're married?

Decisions about who should remain in the family home are normally made as part of your divorce proceedings. The divorce court may decide that:

  • the property has to be transferred into the non-owner's name
  • the property has to be sold and the non-owner awarded a 'capital sum', to be paid as a lump sum or in instalments
  • the property has to be sold and the proceeds divided between you
  • the partner caring for the children can stay in the home
  • the partner caring for the children can stay in the home for a fixed period of time (for example, until the children are 16 or 18)
  • one partner can stay in the property and pay rent to the other.

How will the court decide?

The court's decision will depend on your personal circumstances, such as:

  • what income each partner has
  • who will be responsible for looking after the children.

Your solicitor will be able to give you further advice about the court's decisions. You can also find out more about divorce proceedings from Adviceguide.

What decisions can the court make if we are civil partners?

If you are getting your civil partnership dissolved, the court granting the dissolution can also grant orders concerning the family home, if asked to do so. For example, the court can decide that:

  • the property should be sold and the proceeds divided between you
  • the property should be sold and the non-owner awarded a 'capital sum', to be paid as a lump sum or in instalments
  • the property should be transferred into the non-owner's name.

When doing this, the court must attempt to share the value of the property fairly between you, taking into account personal circumstances such as who has been or will be mainly responsible for childcare.

What decisions can the court make if we are not married and one of us is the sole owner?

If you and your partner are not married, it's unlikely that the non-owner will be able to stay on in the family home long term.

If you have children together, the non-owner may have more rights. The court may decide that it would be in the best interests of the children to:

  • sell the property and split the proceeds, or
  • allow the partner who is caring for the children to stay in the home.

How do I get the mortgage transferred?

The court may decide that ownership of your home should be transferred from one partner to the other. The court can also order one or both partners to make payments to the mortgage. However, the court cannot transfer liability for the mortgage from one partner to the other without the lender's agreement.

The lender may be reluctant to transfer the mortgage if:

  • you have mortgage arrears
  • they don't believe the new owner will be able to keep up the payments on their own
  • the new owner will be relying on benefits to help pay the mortgage.

If the mortgage lender won't transfer the mortgage to the new owner, the original owner or joint owner will still be responsible for making payments. This means that if the new owner defaults on the mortgage, the lender will still be able to take the previous owner to court, even though they no longer have a right to live in the property. If this is the case, the court may decide to give the non-owner the right to live in the property, rather than transferring ownership to them.

This is a complicated situation: talk to your solicitor, or an adviser at Citizens Advice or money advice centre if you are concerned about paying the mortgage after you and your partner have split up.

How do we get ownership of the home transferred?

The page on buying a home with other people explains what you need to do if you decide to buy your partner's share of the home, or your partner decides to buy you out.

What if I keep my share of the home?

If you jointly owned your house along with your ex-partner, you might have a survivorship clause in the deeds to your house. If you do have a survivorship clause, it's very important that this is changed (or 'evacuated') when you split up. If the deeds are not changed appropriately, your ex-partner could still be entitled to your share of the house when you die, regardless of the fact that you have split up. Have a look at our page on title deeds for more information but you must get advice from a solicitor about this when you are splitting up and before the title deeds are changed.

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The important points

  • Speak to your solicitor before coming to any decisions. If you are feeling upset or bitter about your relationship breakdown, you may find yourself making a decision you later regret.
  • It may be possible to come to an agreement with your spouse or partner about the future of your home without involving the courts.
  • If you and your spouse or partner own your home jointly, you may agree that one of you will buy the other's share and be registered as the sole owner.

If you're still looking for help, try searching, or find out how to contact us

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