With Elmhirst Parker Solicitors, Barnsley

Separation is never easy, but if you and your former partner are not married but own property together, the situation can be even more complicated.

One in five families in the UK are cohabiting, a legal term for partners who live together but are not married or in a civil partnership. When cohabitees separate, they are not afforded the same protections in law as married couples who are getting divorced. This can be difficult, as, for many cohabiting couples, there is little difference in practical terms.

When couples decide to buy a home together, it can be easy to get caught up in the excitement of house hunting and furniture buying. Formal legalities are often at the end of the to-do list. But making sure both parties are on the same page with what happens to the property if you separate can save hassle and heartache in the future.

Here we look at some frequently asked questions.

Do I need to move out of our home?

If you own your home and you are named on the title deeds, you have the right to stay in the property. However, if you are both named on the title deeds, you will need to decide between you who (if any) will remain in your home, or if you wish to sell it. Indeed, in some cases

What if we want to sell the property?

If both parties agree, the process is reasonably straightforward. You can sell the property and divide the profits after paying off any existing mortgage.

What if one partner wishes to stay in the property?

The party that wants to stay may be able to buy the other’s shares in the property. You should seek advice from an experienced mortgage broker if you wish to do this as lenders will require evidence that you can afford the mortgage on your own. You will then need the assistance of a solicitor to transfer ownership.

What if things go wrong?

If you and your former partner are unable to come to an agreement, you may wish to enter mediation. If mediation is unsuccessful, you can ask the court for an order under the Trust of Land and Appointment of Trustees Act (TOLATA 1996) for an order for sale or to determine the extent of the parties’ ownership. Typically, the court will divide the property’s value between the two of you based on the shares you are entitled to.

What if we have children?

If you have children under the age of 18, it is possible to ask the court to delay selling the property until your youngest child turns 18.

If I move out, do I still need to pay the mortgage?

If both parties are named on the mortgage, you are both responsible for continuing to make mortgage payments – even when one party moves out.

Think before you buy

If you are thinking of taking that big step in your relationship in buying a house together, there are ways to legally protect both your interests.

A written cohabitation agreement can avoid unpleasantness and cost by eliminating potential disputes. They are legally binding documents that record the arrangements of couples who live together and can clarify how you intend to manage your finances whilst you live together, as well as certainty in property division upon the breakdown of the relationship. Generally, they will cover ownership of property, furniture and personal belongings, as well as who will contribute to finances.

When you buy a property together, a conveyancer should ask how you intend to own the property. If you are buying the property in joint names, there are two ways in which you can own the ‘equity’ (i.e. the value) of the property.

Joint tenants means you both own the whole equity as equal owners; if you were to separate, the value would be divided equally. If one of you were to die, the whole property would automatically belong to the other.

On the other hand, tenants in common means you each own your separate share. This can be equal or not, depending on how much you have each contributed. For example, if one partner put down more/all of the deposit, it may be in their best interest to own a larger proportion of the value.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.