When couples separate there is often much confusion about what will happen to the family home and mortgage. Legal expert, Graham Coy, helps clear things up
Relationship breakdown is unfortunately all too frequent in this country. For example, in England and Wales, the average length of a marriage which ends in divorce is about 11 years.
At the same time an increasing number of couples are living together and choosing not to marry, while research shows that couples who do not marry face a greater chance of breaking up.
For most couples, married or unmarried, their most valuable asset is the family home.
More often than not that family home is mortgaged, especially at a time when house prices are soaring.
But what happens if a relationship fails, the family home is only in one party’s name and there is no agreement as to who pays the mortgage.
The answer to this depends on whether the couple are married, or in a Civil Partnership – or not.
For if they are married or in a Civil Partnership they have much more protection and more responsibilities. By contrast if couples are not married, the law does little – or certainly not enough – to protect them.
Successive governments have been lobbied to change this situation which can all too often cause considerable worry and unhappiness, some have made promises while others have not, but nothing has changed and sadly there seems to be no prospect of change happening.
Unmarried couples
So, where a couple are not married, the family home is one partner’s name and he or she leaves and does not pay the mortgage, what can the party left behind do?
Well, as an interim measure they can try and pay the mortgage themselves. It is quite unlikely that the lender would refuse to accept payments. In any event, this is just short-term.
What they need to do is obtain legal advice as to whether they do in fact own the family home, or at least own it jointly with their ex-partner.
If the home is one party’s name this is not the end of the story.
The other party may be able to successfully establish that they part-own the home in a number of different ways.
- If they contributed to the purchase price, even indirectly.
- If it can be proved that it was always agreed and intended that the family home would be owned together and they relied on that to their detriments or disadvantage.
- If they were led to believe that they would be owning the house together and, again, relied upon that to their detriment.
What “detriment” means will vary from case to case, but would include, for example, giving money away relying on promises that the house would be jointly owned, which they would never have done had they not believed that the home was owned by the two of them.
If successful, payments they made toward the mortgage would be preserving something which they owned.
However, unlike a couple who are married, it is impossible to obtain the equivalent of maintenance to help pay that mortgage. In that event, a sale may be the inevitable result.
Children
But what if there are children still at school or at university? In this case the Court does have power to preserve a family home or make provision for the purchase of one until the children finish their education. They will also provide for the other party to pay maintenance for the children which will include keeping a roof over their heads.
Married couples
The picture is so different if the parties are married.
On divorce it makes little difference as to who owns the house. The priority is what is best for the children; making sure they have a secure home.
In addition, whatever assets there may be, including the family home, are shared according to need and not according to who they are owned by.
There are, in addition, powers to award interim and long-term maintenance which will help make sure mortgages are paid.
This is just a broad outline of the legal position, reform is needed but in no way imminent, and in every case, seeking legal advice as soon as possible is a worthwhile investment.
Graham Coy is partner in the family team at Wilsons Solicitors LLP
