KNOW YOUR RIGHTS: Property issues and the breakdown of a relationship

THE end of a relationship results in questions about your property rights, including ‘who gets the house?’

This is a complex area of law, and the answers to these questions depend on a range of factors, including:

• Your marital status (whether you are married or not married)

• Whether you and your partner can agree on the terms of your break-up

• Whether one name, or both names, are on the title deeds to the house

• Whether there are any children and if they need to be provided for

It is important that you get professional legal advice before making any decisions in relation to property and other assets.

What are my property rights if I am married?

If the house was bought and the title deeds are in both your name and your spouse’s name, you are joint owners. This is also known as a joint tenancy. In this case, you and your partner can agree to either:

• Sell the property and split the proceeds (money) after any outstanding mortgage is paid

• ‘Buy out’ your partner’s share of the property so that you become the sole owner. If there is a mortgage on the home, you will have to get the agreement of the bank.

It is important to remember that if you took out a mortgage with your spouse or partner, you are jointly liable for the mortgage payments. Even if your spouse stops paying, you are still responsible for the whole amount.

You do not have to be a legal owner (have your name on the title deeds) of the family home to have a legal right to the property after marriage breakdown. It all depends on the surrounding facts. Matters such as each person’s contribution (financial and otherwise) to the home and the family will be very important.

You cannot sell, mortgage, lease or transfer your family home without the consent (permission) of your spouse. This is set out in the Family Home Protection Act 1976 as amended by the Family Law Act 1995. Similar protection is provided for the shared home of civil partners in civil partnership legislation. These provisions do not apply to cohabiting couples.

What is a property adjustment order?

If you are married and applying for judicial separation or divorce, and you cannot agree on what happens to the house, the court will make a property adjustment order. This is where the court decides what happens to the property and which assets (or percentage of the assets) you and your spouse should get.

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement between two people who plan to marry each other. It relates to property, maintenance and custody arrangements in the event of marriage breakdown.

A court must make sure that spouses and children are adequately taken care of when a marriage breaks down. A pre-nuptial agreement is not legally binding, but it can serve as a guide for the courts on what the parties’ intentions were at the outset of the marriage in judicial separation and divorce cases.

What are my property rights if I’m not married?

If you are cohabiting (living together but not married) and your relationship breaks down, the family home will belong to the person who holds the legal title to the home. This could be one of you, or both of you. If both your names are on the title deeds, you are both legal owners of the property. You jointly have to make decisions as to what will happen to the property.

If you cannot come to an agreement, you can apply to the court to have the property sold and the proceeds divided, or it may be possible to seek an order breaking up the property. This would allow each party to decide what to do with their portion. This may be possible where there is a lot of land connected to the family home, or if there is more than one residence on the property.

Whether you are married or not, if your name is not on the title deeds to the house, you may still be able to show that you have some ownership rights in relation to the house.

These rights are based on the fact that you may have made a contribution, (either directly or indirectly), to the purchase price of the house with the intention of gaining a share in the ownership of the house. Usually, if you can show that you made a contribution to the purchase price of the house, you will be entitled to a share in the house in some proportion to your contribution.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 sets out certain legal rights and protections that cohabiting couples have, which may allow you seek redress in the courts. 

What if there are children involved?

If there are children involved, a relationship breakdown can be life-altering. It needs to be handled sensitively to ensure the children’s best interests are prioritised. Often, if a married couple with children are separating, the person who looks after the children the majority of the time will get to stay in the family home until the youngest child reaches 18 years old (or 23 if they are in full-time education). 

Dependent children of civil partners are protected in a similar way under the Children and Family Relationships Act 2015. If the parents cannot agree who the child will live with, the court can make orders in relation to custody and access.