What happens to your home if you separate?
It’s a situation you never hope to find yourself in, but it’s something that unfortunately applies to a third of married couples in Scotland: we’re talking about divorce.
If you are separating from your partner, you will likely have many concerns to consider, including how it might affect your status as a homeowner. It’s essential that you understand your rights, should the worst happen in your relationship – even if that eventuality seems impossible just now.
The sad fact of the matter is that depending on your circumstances, separating from your partner (whether you’re married or cohabiting) can impact your rights to your home, and it can be a difficult situation to resolve. However, with the right support and legal advice, there can be a smoother way out of what is undoubtedly a rough part of life.
As with many things, the recommended best course of action is to ‘prepare for the worst, hope for the best’ – which means that in an ideal world, you and your partner would have thought in advance about what might happen if you were ever to split, and had made the necessary legal arrangements prior to purchasing a property together. But of course, this isn’t always the case – so we’ve spoken to the experts to find out what you need to know.
Assess your situation
Prior to marriage, or even purchasing the property together, did you take out legal agreements confirming your rights as homeowners, or perhaps you signed a pre-nuptial agreement? If either of these are applicable, your rights as homeowners become much clearer for your solicitor to navigate. If not, you’ll certainly need to seek legal advice about your situation.
If you are cohabiting, or about to take the plunge, it’s worth speaking to a solicitor for legal advice prior to signing contracts. If one of you has contributed significantly more to the property deposit, or perhaps one of you owns the property outright and the other is moving in, it makes sense to look at what formal agreements you should be making, to confirm your rights and protect your personal assets. Pre-nuptial agreements aren’t just for the rich and famous!
Update your will
Maintaining an up-to-date will is recommended for all adults, but especially those with assets or children. If you are separating from your partner and you have a will, you should update it to reflect your current circumstances. Just 40% of homeowners have an up-to-date will in place, so make sure you’re in that group and keep it aligned with your current situation.
It’s important to remember that if you don’t update your will, and something were to happen to you before your divorce was finalized, the will’s current instructions would still apply – which you may not want to be the case.
Don’t rely on hearsay
One of the most common pitfalls faced by cohabiting, unmarried couples is the belief that they are protected by ‘common-law marriage’ after living with a partner for a certain amount of time. There is no such thing as common-law marriage in Scotland, and you are not afforded spousal rights if you are unmarried, no matter the length of time you have been together.
What if you aren’t named on the mortgage?
Separation can be very detrimental if one partner isn’t named on the mortgage. It’s not uncommon that couples split the mortgage repayments equally, but only one person paid the deposit for the property, or just the higher-earning partner was named as the mortgage holder.
This can be difficult to navigate if only one half of the couple is a named homeowner, because it leaves the other in a vulnerable legal position, as they can’t evidence ownership of the property. An agreement as outlined above would help in that it would offer some certainty around the return of your money in the event of the relationship ending, but it wouldn’t give you ownership of the property.
Can you buy out your partner?
Something that may come up is the option for one partner to buy out the other partner’s share of the property. If one partner doesn’t want to leave the property, this is an outcome that can suit all parties. This is something you can request as part of a divorce settlement, but something that isn’t enforceable if you’re unmarried; in this instance, it would be helpful to have an agreement in place prior to the relationship breakdown which states that one partner would have the right and the means to ‘buy out’ the other.
If you’re separating amicably, you may be able to agree on a situation that suits you both, but if not, you will need legal advice to reach a conclusion. It’s imperative that if you are unmarried and living together, you understand your rights and what you’re not entitled to.
What if the home isn’t paid for equally?
It’s not uncommon for household bills to be split differently according to separate incomes, especially in a family setting where one partner may earn less due to working part-time and raising children. In an instance where one partner is paying the mortgage, and another is paying the household bills, you may be worried about your rights to an equal share of the property if you haven’t paid an equal share of the mortgage.
Legal experts state they would look at the financial position of each partner at the beginning of the relationship, and if there was a significant economic imbalance that wasn’t evened out by another contribution, there may be cause for a claim for compensation. There is an expectation for evidence to be provided for this, which is where difficulties may arise, and one partner may find themselves at a disadvantage – so legal advice is a must if you’re in this situation.