Who Gets to Stay in the House During Separation?

Breaking up is hard to do. It can be even harder when it comes to deciding who should stay and who should go from the property you have shared. In this article, we consider some of the most common scenarios and possibilities on what you can do with your home when splitting up.

If you’re separating from your spouse

When married couples separate, divorce law comes into play. Unlike ex-cohabitors, ex-spouses have automatic legal rights when it comes to the breakdown of a marriage. If a home is owned and was lived in by both during the marriage, both parties have the right to stay there even when their name is not on the title deeds.  This is because it will be considered a matrimonial asset and as such it will be added to what is known as the matrimonial pot where other assets such as pensions, investments and other property are also included. It may not always be divided equally as it will be considered alongside the other assets. Similarly, if you are not named on a tenancy agreement for a rented home, you have a right to live in the home too.

If you were cohabiting

If you are not married to your ex-partner then your options are different from married couples and those in civil partnerships.

Source: divorcehub.com.au

• When you both own the property

If you own the property together as an unmarried couple, for instance, if both you and your former partner are named on the title deeds, then you will need to make a joint decision on things. This may be in the form of ‘tenants in common’, when each of you owns a certain share in the property, not necessarily 50/50, or a ‘joint tenancy’ when each of you has an equal share in the property.  In both cases, your names will be on the deeds of your home.

• When you can’t agree

If you are unable to agree on what happens, you could try mediation, or if not, you can ask the court to decide. Typically, the courts will align its decision based on the type of ownership you have. In cases with children, the court has the power to delay the sale of a home until a child is 18. Profits can be split if you decide to sell your home and in some cases, some couples decide to buy their former partner’s share of the home or sell it to the other. A solicitor will deal with the transfer of ownership and you will need to speak to your mortgage provider too they will need to run affordability checks.

• When you are not named on the mortgage

If you are not named on the mortgage or your name is not on the property title deeds, you could be able to prove you have a beneficial interest in the property if you have contributed towards any household bills or made a lump sum contribution. This will need to be proven in court, for example, you can show

Source: cnn.com

• When you are tenants

If you rent your home, the decision on who gets to stay in the property depends on the type of tenancy agreement you have. If your agreement has almost ended, you will need to give your landlord notice of your intention to leave and ensure that all bills are paid up by that date. If you both intend to leave the property and your agreement still has some way to go, you can try to end your tenancy early.

If you are joint tenants, then you will have equal rights to stay and if one party moves out, then can still move back in at a later time if they are still named as such. Whoever moves out will still be expected to pay rent as a named tenant.

• Considering Child Custody and Home Stay: How Courts Address Parenting Scenarios

In cases of separation, the intersection of child custody and home residency is a critical consideration for courts. Recognizing the importance of stability for children, courts often evaluate how living arrangements impact parenting scenarios. The decision about who stays in the house may be influenced by maintaining familiar surroundings for the children’s well-being. Courts may opt for temporary residency solutions that align with custody agreements, aiming to minimize disruptions in the children’s lives. This nuanced approach seeks to ensure that the best interests of the children are at the forefront, promoting a balanced and supportive environment amidst the challenging circumstances of separation.

• Exploring Alternative Solutions: Mediation and Its Role in Property Division

When disputes arise over property division during separations, considering alternative solutions like mediation can prove invaluable. Mediation, facilitated by a neutral third party, offers a platform for constructive dialogue and compromise. It allows both parties to voice their concerns, preferences, and priorities in a controlled environment. Through open communication, couples can collaboratively craft solutions that align with their unique circumstances and needs. Mediation’s emphasis on mutual agreement can lead to more satisfactory outcomes compared to contentious legal battles. By fostering understanding and cooperation, mediation contributes to smoother property division processes, reduces emotional strain, and helps couples maintain better control over their decisions, ultimately paving the way for a more amicable separation experience.

Source: strategiclawyers.com.au

• Financial Implications of Property Division: Selling vs. Buying Out Shares

Navigating property division during separation involves crucial financial decisions between selling the shared home or one partner buying out the other’s shares. These choices carry significant implications, including affordability assessments, ownership transfers, and potential profit division. Couples must assess the feasibility of each option and consider long-term financial stability. Whether opting for equitable profit sharing through sale or pursuing individual ownership, a clear understanding of the financial consequences is essential for informed and equitable property division decisions during this challenging phase of separation.

• Legal Remedies for Non-Titled Individuals: Establishing Beneficial Interest

For individuals not listed on property titles or mortgages, establishing beneficial interest becomes a pivotal legal recourse during separation. This concept acknowledges financial contributions made by non-titled partners to the property. Proving such contributions, such as bill payments or lump sum investments, is vital in court proceedings. Successfully demonstrating beneficial interest can influence decisions on property occupancy and division. This legal avenue recognizes the financial stake of non-titled individuals, ensuring a more equitable consideration of their involvement and contributions in the property’s value.