Protecting your rights to your home in a divorce

If you’re married or in a civil partnership, and your name isn’t on the title deeds, you should apply to Land Registry for a Home Rights Notice, if you live in England and Wales.

This will essentially stop your ex from selling or taking out another mortgage on the property without you knowing. It can also allow you to remain in the home while the divorce is being finalised.

If you live in Northern Ireland, you can register for a Matrimonial Charge on the property. If you’re in Scotland, it’s a little more complex and requires a solicitor’s involvement.

The Home Rights Notice usually stays in place until the Decree Absolute has been granted (final order in a civil partnership) and you’re no longer married. It will end automatically on the death of either party involved, or if the beneficiary agrees to remove it voluntarily. However, this would typically only occur once the division of finances has formally taken place.

If you’re unmarried and not in a civil partnership, you can claim a ‘Beneficial Interest’ in the property. This will give you the right to stay living there and receive a share of the value of the house when it’s sold. However, you will need to provide proof of financial contributions towards the mortgage, upkeep, or renovations to the property.

If you own the home together, with both your names on the title deeds, you’ll either be:

• Tenants in Common –where you each own a share of the property. If one of you paid a bigger deposit or put in equity from a previous property, you can allocate the percentage share each of you owns when you first take out the mortgage. But even if you own an equal share, your named beneficiaries will inherit your share, rather than it going to your partner.
• Joint Tenants –where the property is owned equally between you. If one of you were to die, the other would automatically inherit their share, regardless of what’s stated in their will.

If you’ve decided to separate and own the property as Joint Tenants, you should seek advice from your solicitor about changing ownership to Tenants in Common. Divorce can be a protracted and painful affair, taking many months and even years to agree. By changing to Tenants in Common, you can control who receives your share of the property. This is particularly relevant if you have dependents from a previous relationship who you’d like to benefit.

Once you’ve decided to separate, it’s a good idea to inform your mortgage lender. After all, you’re still liable for the repayments, however difficult the divorce proceedings get.

It can be an uncomfortable conversation, especially if you think you might have problems paying the mortgage or if you’re worried that your ex-partner won’t contribute. Your mortgage lender will be more sympathetic if they understand your situation, and they may be able to offer you a payment holiday to temporarily ease the financial burden while avoiding the risk of repossession.