Rights to Your House After Divorce

If you and your partner are separating it is advisable to see a specialist solicitor to help negotiate what is your share of your home and resolve any mortgage.

If you are married or ‘jointly own’ your home with someone else then you do not have to leave your home unless your partner or lender gets a court order.

Married or cohabiting take advice:-

  • Do not sign any documents, such as a second mortgage unless you have advice and understand the consequences.
  • Act promptly, the longer you leave things the more problems may arise.
  • Never agree to the sale of your house until you have looked at all the possible options.
  • If you are divorcing and the court makes an order allowing you to stay in the property still in your partner’s name you need to register a charge at the Land Registry to protect your right of occupation.
  • If the house is not in your name try to ensure your partner does not raise a second mortgage against the property or sell the house without telling you.

The rights of Unmarried Couples are not as protected as they are for married couples. You may want to agree from the outset how money and property should be divided if you should separate by a formal “Separation Deed” or “Cohabitation Contract”

Occupation Orders in England

  • If your partner is the sole owner of your home you may be able to apply to the court for an ‘Occupation Order’ to enable you to stay for up to a year or longer if you can establish a claim to a share of the property.
  • If you want the right to return to, stay in or exclude someone else from the home, you may be able to use an occupation order
  • If your partner does not accept your rights, you might need to go to court to enforce them.
  • If you’re a cohabitee without any automatic rights to the home, you can apply to the courts to give you rights on a short-term basis.
  • If you and your partner have to live in different parts of the same home occupation orders can also be used to restrict someone’s use of a property

An occupation order could:

  • allow you to stay in the home
  • allow you to return to the home if you’ve left
  • make sure that your partner only uses a certain part of the home
  • prevent your partner from accessing the home
  • prevent your partner from being able to visit the neighbourhood where your home is.

If you are an owner, tenant or someone with beneficial interest and you get an order preventing your partner from entering the home, this order will override the home rights that partner may have. If the person that is prevented from entering the home is an owner, tenant or someone with beneficial interest, their home rights will be suspended until the order states otherwise.’ Advice from Shelter