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Rights to Property After Separation

18 Dec 2020

Author: Hepburn Delaney

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For many, a home is not simply a house, but a place of memories and emotional attachments. After a separation, the question of who has rights to the family home can add stress to an already difficult situation.

When married couples separate, the family home is generally assumed to be shared by both parties even if it is legally owned by only one, so the decisions around what should happen to the property need to be negotiated along with all the other matrimonial assets.

If the couple is not married, the law is different and who has rights to live in the home or who has rights to some or all of the value of the property depends on the individual circumstances.

Who can enter the property after a separation?

If one party moves out of the home, there may be a concern that they are giving up their rights to the property, but this may not be the case. If the property is jointly owned, both parties have the legal right to enter the house, even if they have moved out.  If the house is not jointly owned, there may be different rights and obligations which depend upon occupation or contributions to the property.

Of course, this is something that needs to be communicated in advance and handled sensitively. Unannounced visits may cause distress, which could lead to legal action being taken if the person living in the home feels intimidated.

Who is responsible for mortgage payments?

Whoever is the legal owner of the property, or whoever is named on the mortgage, has a legal responsibility to keep up the mortgage payments. This means that even if you have moved out, you may continue to have financial responsibilities for the property.

However, it is important to understand that if one person refuses to pay their share, the other is liable for the full amount, not just their 50%. If full payment is not received, both parties face the financial consequences, as well as the possibility of losing the home if regular mortgage payments are not met.

Model house and set of keys

Who decides what happens to the property?

During the divorce process, there is not one single procedure for deciding who keeps the property or how the monies from a sale are split. This is something which needs to be decided by the former couple or ultimately by the Family Court. The circumstances of each separation are unique, and how the parties divide their assets is something that has to be negotiated or determined.

Hepburn Delaney can provide support to guide you through these legal processes, either through advice from our matrimonial team or through our mediation services and to help you to resolve potential issues surrounding property rights and dividing financial assets.

What happens if there are children?

Where children are involved, if both parties cannot agree on the arrangements for the family home and an application to the Family Court is required, the court will make their decision based on the best living arrangements for the children. Divorce can be particularly hard on children, so it is important to try to put personal conflict aside as much as possible to prioritise their needs.

If you are recently separated and are seeking legal advice about your property rights or legal support through your divorce, please contact us to see how we can best support you.