My name isn't on the mortgage: what are my rights?

In the first flush of love, practicalities such as who owns what are rarely top of your list of conversations. 

But if you’re planning to move in with someone who owns their own home or you’re already living together, it makes sense to know where you both stand.

While it can seem sensible to offer to split mortgage payments, volunteer to just 'cover the bills' or agree to a reduced 'mates' rates rent', it’s also sensible to understand where that leaves you if things go pear shaped in the future.

Hopefully everything will go swimmingly, but in case it doesn't, it's much better to have these conversations up front, rather than at a point when emotions and relations are feeling strained.

Here’s what you need to know if your name isn’t on the mortgage.

If you're living with a partner but your name isn’t on the mortgage, you could have some rights over your home if you are married or in a civil partnership.

If you aren't, you're unlikely to have any rights of ownership over the home if it’s not in your name.

It is possible to take out paperwork to give you rights over it (more on which, later), so check in case that’s been done.

If you are married or in a civil partnership but are not on the mortgage, then you don’t automatically have rights over the home. But you can apply for them.

Applying for a Matrimonial Home Rights Notice will give you some legal rights to occupy the home you share with your spouse or civil partner, even if it’s solely in their name.

This means that your partner or spouse would not be able to sell the home without your permission, or make you leave the home after it is sold.

A Matrimonial Home Rights Notice, however, doesn’t give you home ownership rights. 

Remember, the family court has the right to decide home ownership as part of wider divorce proceedings. 

The original name on the mortgage or balance of ownership has no bearing on what a family court judge may or may not decide as part of a divorce settlement and it’s common for the assets to be split 50/50.

You can apply for a Matrimonial Home Rights Notice even if you are no longer living in the home.

You'll need to obtain the title number for the property, which will be available at HM Land Registry, fill in an HR1 Form and file it with the registry.

There are some restrictions on Matrimonial Rights Notices. For example, you can’t apply for one on a home which your spouse or civil partner owns with someone else.

If you're living with your partner but aren't married or in a civil partnership and your name isn't on the mortgage, you won't have any automatic financial claims over the property if you separate.

If you’re currently in this situation and you don’t plan on getting married or entering a civil partnership, you can file paperwork that will protect both your interests in the home.

This paperwork is called a Declaration of Trust.

A Declaration of Trust is a legal document with information about who owns a home.

It is a document that costs around £1000 to get a solicitor to draw up, and it shows who owns what so that it can be divided up fairly if you sell.

A Declaration of Trust is usually drawn up when friends or family members, rather than couples, buy a home together. 

But there’s no reason why you shouldn’t get one if you’re a cohabiting couple. 

If one of you own a home but the other person is paying into the mortgage or is splitting the cost of renovations and extension work, it makes sense to get one done.

If you’re not married or in a civil partnership and you haven’t got a Declaration of Trust agreement in place, you may still be able to argue a legal interest in the home.

This is a complicated and potentially expensive legal process. In order for a court tribunal to find in your favour, you must be able to demonstrate that:

1. There was a shared intention that you would have an interest in the home

2. You have acted to your detriment in reliance on this

3. You were led to believe that you had a beneficial interest and as a consequence of this you acted to your detriment

What happens if we break up and only one of us is on the mortgage?

Unless your name is on the mortgage or deeds, you may not have any rights to the home.

This will be the case no matter how much you’ve contributed to the bills or mortgage costs over the course of the relationship.

If you’ve moved into your partner’s home, you’ll have no rights to it if you split up, unless you’ve got a Declaration of Trust in place.

You have no rights to stay and no rights to any value that the home may have accrued, as your name isn’t on the deeds.

What if we have children but only one of us owns our home?

If you’re not married, but have children together, the law is slightly different.

But it’s not as clear cut as it is for married couples getting divorced.

If you’re going through the courts over custody, then it may be possible to obtain a right of occupation order allowing you to stay in the family home. 

Such occupation orders are usually temporary, and are only usually granted if children are involved.

You may also be able to claim “beneficial interests” in the home through the courts.

This might include allowing a cohabiting partner not named on the mortgage to:

• live in the family home

• have a share of the income if the home is rented out

• have a share of the profit if the home is sold

As ever, you should always seek professional advice and support to guide you.