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What happens to our home if we break up?

The laws around dividing a home change according to whether you were married or in a civil partnership, were cohabiting or if children are involved. Let's take a look.

Guest Author
Words by: Matilda Battersby


Breaking up is never easy. Along with the emotional upheaval, you’ll need to sort out the shared finances.

Crucially, there’s the matter of where you’re both going to live now that you no longer want to live together. This might mean selling up or buying one another out.

But it’s complicated. And, while you might have parted on bad terms, it’s important to understand what’s at stake for all of you and take the most sensible route forwards.

Behavioural psychologist Jo Hemmings

"No couple starts out living together with a view to their relationship not lasting the course," says behavioural psychologist Jo Hemmings.

"But it happens, and sadly to over half of couples, most of whom set out with all the right intentions and preparation.

"The chances are you will be angry with each other, feeling hurt, resentful, distressed and confused. You're unlikely to be in the mood to be amicable with each other.

"But – and it’s a big one – both the emotional and the financial stakes are very high and somehow you need to find the strength to be calm and civil to your partner, to protect yourself from hasty or unwise decisions.

"The break down will be hard for both of you, whatever the situation. So some of that emotional detachment that came into play when you worked out the financial side of moving in together really needs to be harnessed now."

Adrian Anderson of Anderson Harris

"In the event of relationship breakdown, the mortgage can be redeemed at any stage," says Adrian Anderson of Anderson Harris.

"However, if you are in the middle of a fixed rate, there may be penalties to redeem at that point of the loan.

"It is key you understand the terms of your loan when you take the mortgage, your advisor can highlight these points during your application.

"If someone wants to be released from the property deeds and the mortgage, the property would need to be sold or the other party bought out.

"A new mortgage in sole names would also be required, with a new affordability assessment.

"We have also seen parents who are gifting money to a purchase have a parental charge put on the property to protect their money in the event of a breakup.

"Some lenders will allow this, others will not."

You may have been married, cohabiting, have kids or not, or just one of you might technically own the home.

Here’s what you need to know depending on your circumstances.

Who gets the home after a divorce?

Women moving in to new home, dog greeting them

If you’re married or in a civil partnership, the rules are straightforward (legally, at least) when you break up.

Your assets will be split in half following a divorce. But, this is rarely a simple process.

One of the biggest decisions you’ll need to make is how to divide your home. 

For many couples, the family home is the most significant factor in the negotiations.

What happens to the home you’ve shared and where each of you will go depends on what you decide. It’s even more important if you have children.

So, what are the options?

1. Sell your home and split the money

Selling up and dividing the proceeds is an option if you want a clean break. 

Both of you moving out and putting a home on the market can be the simplest way forward. It would give both of you a fresh start emotionally and financially.

On the downside, if you have kids this means uprooting them.

You'll also have to consider the market and how quickly the home you’ve shared might sell.

If it’s a slow market, you might have to hold on to a home you no longer want to live in together. Or lower your asking price to get a faster sale.

Agreeing how much you’d accept for your home can be tricky if you’ve parted on bad terms. 

Neither of you will want to accept a low offer if you're trying to use the proceeds to buy a new home.

You’ll also need to check if there are penalties for paying off your mortgage early if you sell now. Sometimes you can be charged thousands for an early loan redemption if you have a fixed-rate mortgage.

Factor in any extras like this to the budget, alongside any legal and estate agency fees. 

It can be hard when emotions are running high, but you’ll need to be able to discuss all of this, making sure you both understand everything and that you have similar expectations.

Over at My Home, you can get an instant valuation, but nothing beats the real deal of an agent coming in and seeing your home, so let's find the right estate agent for you.

This should help you to work out what you can expect from a home sale that's split down the middle. 

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2. One of you buys the other out

One of you might choose to buy out the other person and remain living in your home.

This can be a good option if children are involved. It can help limit disruption to their lives, because they’ll be able to stay at the same schools and keep familiar surroundings.

On the downside, it can be an expensive choice. It may even be unaffordable.

If you do go down this route, you’ll need to transfer the mortgage into one name. This can be a complicated process.

You may also have to try and find enough assets to even out what the other person gets in the divorce. Again, this might be very expensive and could make it unaffordable.

Remember, taking on a mortgage solo means working out whether you can afford the monthly costs alone. Sometimes it’s worth doing it. Sometimes it’ll be a stretch too far.

Consider the long term impact on your finances and the effect it will have on your work/life balance before deciding.

3. Keep your home and continue to live in it

If your split is amicable, or you have children, you might choose to hang onto your home and both continue to pay the mortgage.

One or both of you might continue to live in your home, either for a short or long period of time.

You may choose to live together, but remain broken up, or both of you might agree to pay into the same mortgage until your children leave school.

This can be a good thing for all of you and the children. But, on the downside, you will be financially tied together. 

If just one of you stays in the home, it can make it harder for the partner who has moved out to get another mortgage to buy their own place.

Sometimes former couples come to this arrangement informally. But it can help to have it down on paper.

In England and Wales you can get what’s known as a “mesher order”.

Sometimes called an order of deferred sale, a mesher order is where one spouse leaves the home but keeps an interest in the family home until the children turn 18. 

The house sale is deferred until this time. The proceeds from the sale are then divided between the former couple when the children reach adulthood.

While this may make sense at the time, the partner who stays in the house can then end up having to get a mortgage in later life. This can be very difficult once you’re over 50.

So it’s worth weighing up the advantages of both keeping the home for a period of time or breaking out earlier and both getting your own place.

4. What if the home is only in one person’s name? 

If you were married or in a civil partnership, both of you will usually receive at least some share of the value of the house, even if it’s only in one of your names.

You and your partner have a legal right to live in the home for as long as you remain married to each other.

Sometimes there are prenuptial or other legal agreements that mean a home wouldn’t be shared equally in the case of divorce. 

But, it is usually standard that both of you would get some of the proceeds in a split.

As always, you should both seek professional advice. 

Selling a home when you're getting divorced

No matter what you decide to do, your home will need to be valued at some point during a break up.

Book local agents to value your home in person

If you’re getting divorced, you’ll need a market valuation to calculate the settlement.

If you and your partner can’t agree upon a value, the court will order a report from a local estate agent or surveyor. 

That individual has a duty to the court to report accurately with an independent and unbiased valuation.

The valuation should be a market valuation, That means it should report what the home would actually sell for rather than suggesting an asking price.

How do cohabiting couples divide a home after a break up?

When you’re not married but live together or share a mortgage, what happens to your home after a break up can be a bit complicated.

If you’re living together, then you’re seen as a ‘common law’ married couple. But, the legal rights around your home are different to those of married couples.

1. If only one of you is named 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.

You have no rights to stay and no rights to any capital that the home has earned, as your name isn’t on the deeds.

2. If you have children but only one of you owns the 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.

3. If you’re both on the mortgage but are not married

You should both take legal advice in this situation.

One of you will either need to buy the other person out or you can both sell the home and split the proceeds.

Sometimes disputes come up if one person paid more for the deposit. Or if one of you contributed more to the mortgage costs each month.

If you have children, it’s worth taking into consideration any time that one or both of you spent caring for your family rather than working and factoring this into the value split.

In the meantime, you’re both liable for the mortgage until it is fully paid off. So if one of you stops paying for it, you can both be chased by the bank. 

It will impact both your credit scores badly if you don’t keep up with the repayments. 

As in any break up, it’s worth trying to be as sensible and financially fair as possible.

If you want to buy yourselves time, you could continue to cohabit while you sort out a sale. Or one of you could pay rent to the other in the form of the remaining mortgage costs.

As always, take legal advice and get any agreements down in writing.

If you have children and are going through the courts regarding custody, your living situations will be a deciding factor in where your children will ultimately live.

Selling a home when you're separating after cohabiting

If you’re selling a jointly owned property but are not married, you’ll want to get a valuation done.

This will help you decide whether one person can buy the other out, or work out what you might walk away with if you were to sell and split the profits.

What's the difference between a survey and a valuation?

Nick Neill, Managing Director of EweMove Estate Agents

"It’s always stressful when a relationship comes to an end," says Nick Neill, Managing Director of EweMove.

"And it can be made more challenging if there is any negative equity involved when it comes to selling a home.

"Although it can be somewhat less painful if there is some excess cash to share when the transaction is complete.

"Who owns what will depend on the ownership structure of the property and that will go back to the advice your solicitor gave you when registering the property to you when you bought it.

"But in most cases, it makes sense to own 50% each as Tenants in Common as opposed to a Joint Tenancy, which has been the most common structure historically.

"In a joint tenancy, who owns what share is very ambiguous and can cause significant challenges in reaching an agreement regarding the share of the assets available to each party.

"Assuming you own 50% each (or whatever share you specified) then the distribution of the sales assets is simple.

"However, it's also worth bearing in mind that both parties could be jointly and severally liable for the mortgage.

"So if one party defaults on their share of the mortgage payments, it can affect the other party, both from a month-to-month cashflow perspective - and it can also impact their credit rating if a default takes place.

"Without a doubt, a quick and non-confrontational sale is in both parties interests - not only emotionally - but financially too."

Parents and kids in a grassy domestic garden playing with bubble mix and bouncing balls

Dividing the family home if you have children

In a separation where children are involved, they will always be your top priority.

It can help during a break up to remember that whatever’s happened, you will both have your kids’ best interests at heart.

"It's important to focus your discussion on the bigger picture," says Hemmings.

"Who is moving out? Where will you live? How should you split your financial assets? How will you tell the children? What will you say? Where will they live?

"You may find it helpful to go to a relationship counsellor and/or a mediator – an impartial and objective third party - who can advise you both on the best way to move forward."

In the eyes of the court, legal ownership of a home is not the deciding factor when children are involved.

This is why courts can issue occupation orders in favour of the primary caregiver, even if that person is not named on the mortgage or married to the mortgage-holder.

If you have children, the court will take into account the fact that they need somewhere suitable to live with each parent.

The decision the court makes will vary, depending on the circumstances.

As always, it’s best to get legal advice on your own case. Crucially, you should both take legal advice before deciding who is moving out of the family home.

If for any reason it’s not safe for you to stay in the family home, there are a number of ways to receive support and emergency housing for you and your children.

Find out more about emergency housing here

Getting a mortgage alone after a break up

It might be difficult to raise a large enough mortgage for where you want to live on your income alone.

This might be the case even if you get some money from the dividing of assets, as mortgages tend to be heavily weighted towards salaries.

Usually, mortgages are calculated as multiples of your annual income. 

Not all mortgage lenders are willing to take maintenance payments into account. So, with this in mind, you might want to seek out the services of a mortgage broker.

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It’s worth having an idea of what you will or won’t be able to borrow for a future home before dividing your assets. 

If one of you has a larger salary than the other, this can help you decide how to fairly divide assets so that both of you can move on in a way that means you can both get a home.

Ultimately, everyone involved in a break up wants the other person to have somewhere safe to live. So, it’s worth talking about all of the available options up front.

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Conclusion: selling a home when you're separating

Both of you should separately seek legal and financial advice so you understand the options available to you as an individual.

If you’re selling your home, avoid telling any buyers why you’re selling.

A break up sale can put some buyers off because if both you and your partner are trying to buy new homes, the chain essentially doubles.

Also, buyers will assume you’re keen to move out fast and may put in a cheeky offer.

Think through how you’re going to split all the costs associated with selling your home and add them up in advance so there are no nasty surprises.

We try to make sure that the information here is accurate at the time of publishing. But the property market moves fast and some information may now be out of date. Zoopla Property Group accepts no responsibility or liability for any decisions you make based on the information provided.