Property rights and the breakdown of a relationship
When a relationship ends, you may have questions about your property rights, including ‘who gets the house,’ and ‘what about the children?’
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
This page explains your property rights depending on your personal situation.
Your property rights if you are 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.
Family mediation can help you come to an agreement on how you manage your affairs when your marriage breaks down, including the division of your assets.
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
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.
The court will consider a range of factors before making a property adjustment order, including your financial and accommodation needs. Depending on these factors, the court will decide which assets (or percentage of the assets) you and your spouse should get.
A pre-nuptial agreement (also called an ante-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.
Your property rights if you are 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.
You are not married but your name is on the title deeds
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.
Your name is not on the title deeds but you made contributions to the purchase of the house
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.
For example, if you paid off half of the mortgage (and the mortgage represented 90% of the purchase price), you may roughly be entitled to 45% of the ownership of the property.
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
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. To qualify for any redress orders, such as a property adjustment order, cohabiting couples without children have to have lived together in an intimate and committed relationship for 5 years. If you have children together, it is 2 years.
A court will only make such an order if it is satisfied that one partner was financially dependent on the other cohabitant partner.
The Act also provides for couples to enter into a "cohabitation agreement" to set out your financial interests and also determine what will happen with certain assets, such as property, if your relationship should end.
A cohabitant’s agreement can make things more straightforward in the event of a break-up. A court may vary (change aspects of) or set aside a cohabitants’ agreement in exceptional circumstances where enforcing it would cause serious injustice.
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.
Getting legal advice
It is important to get professional legal advice before making any decisions in relation to property and other assets.
Solicitors' fees can vary considerably so shop around and get some quotes before deciding who to use. Find contact details for solicitors on the Law Society website.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.