Staying or leaving an owned home after separation
Last updated: 20/01/2021
This information is about staying in, leaving or selling your home and about paying the mortgaging.
Can I stay in the home?
The person who owns the property is the person whose name is on the title deeds. The property can be owned solely or jointly and if you and your ex-partner own the property jointly, both names will appear on the title deeds and you can both have occupancy rights. It is possible to have title deeds amended but there is a charge to be paid to the land register. Your solicitor can arrange this.
If your ex-partner owns the home, and you don’t have occupancy rights, even though you have children together, then your ex-partner will be able to evict you without having a court order. You must be given reasonable notice to leave. If you don’t want to leave the property you should get advice from a family law solicitor who can apply immediately, to the Sheriff Court, for occupancy rights. The Sheriff will make the decision to grant you occupancy rights or not. Occupancy rights are given for a set period of time, based on your circumstances, but you can apply to extend the time period.
You have the right to remain in your home, when your name is not on the title deeds, but you are married/in a civil partnership or have occupancy rights. You can only be forced out of your home by a court order. If you feel you are being forced out by your ex-partner you should get legal advice on what to do.
Can I leave the home?
If you are not married or in a civil partnership, are not the owner and don’t have occupancy rights you do not have any responsibility for the property you are living in. You can leave when you want to without a need to agree with your ex-partner about what happens to the house. You should, however, get advice on any money that you have paid towards the mortgage, repairs or improvements to the property that you may be entitled to have refunded.
If you are married or in a civil partnership and you or your ex-partner is the sole owner of the property, then you both need to agree on what you want to do with the property after you separate. However, if you are not married or in a civil partnership and one of you is the sole owner, the owner can decide without the other’s agreement.
Can I sell the home?
You both must agree to sell your property if it is jointly owned. If you don’t agree then you should speak to a solicitor about going to court to decide what should happen. Being a joint property owner doesn’t mean that you automatically get half the proceeds. The amount of money you receive depends on several things like, who owns what percentage of the property (this will be noted in the title deeds) or whether one of you has paid more into the property since you bought it, for instance for repairs. Your solicitor will advise you on this. If you can’t agree over proceeds of the sale, your solicitor can ask the court to decide how the proceeds are to be divided.
Who pays the mortgage on the home?
If you and your ex-partner own the property jointly then you are both responsible for paying the mortgage. If one of you owns the property, but you have a joint mortgage, you will also both be responsible for paying the mortgage. When you separate you will need to decide who, if either of you, wants to remain in the house and take on the mortgage.
When your ex-partner is the owner and sole name on the mortgage and they move out you need to contact your solicitor and mortgage provider as soon as possible to see if you can take the mortgage on yourself if you wish to remain in your home.
Speak to your mortgage lender if you are having difficulty paying the mortgage as they may be able to reduce your payments for a period or alter the way your mortgage is paid, e.g. interest only. If you are in arrears with your mortgage, again let your lender know. You need to get advice as soon as possible to avoid penalty fees for late or missed mortgage payments.
Do I need legal help?
You and your ex-partner might be able to sort out what happens with your home after the breakup without having to go to court. It would certainly be cheaper and quicker, but it might be that your home and other financial matters are tied up in a divorce or dissolution, so it would be advisable to get some legal advice before you make any decisions.
If you and your ex-partner are not married, or in a civil partnership, and only one of you is named on the deeds then it is usually only that person who has a claim to your home but again you should seek legal advice.
Dividing belongings in the home
As part of a couple you may have collected a lot of possessions such as furniture, ornaments and even kitchen appliances that need to be shared when you separate. Items that have been given to either of you specifically will belong to that person, but other possessions will need to be divided. If you are finding this difficult to do, particularly if the possessions you are arguing over are valuable, it is best to get help from your solicitor although this could be lengthy and expensive.