Can I Buy My Ex Out of Our House?
What happens to the house is a question that often arises on separation or divorce.
Unmarried Cohabitees
If you are unmarried the law is complex and often seen as unfair. You may not have rights that you thought you had and may not actually have any entitlement in relation to the house at all. In these circumstances your ex-partner may be able to force you to leave the house without any right to a payment. Even if you have a right to a share in the house, you may not be able to agree who is to stay and dealing with such issues through the courts is not straightforward and can be very expensive.
Given that the law in this area is so complex we would advise seeking advice before cohabiting, so that you are aware of your rights, or lack of them and make an informed decision as to whether you should cohabit and whether you should do something legally to give yourself future security. There are a number of options including a cohabitation agreement, a pre-nuptial agreement if you plan to marry or dealing with the property title in a way that gives you rights.
We could not adequately sum up the different scenarios in a short article but if you are unmarried, separating and have shared a property, early advice is vital.
Married
Again, there is no automatic right for one person to buy out the others’ interest. Both may wish to remain in the house and seek to buy out the other or one party may not be able to afford to do so but may be able to argue that they should be able to stay in the house. This may arise typically where the children live primarily with one party, who is on a lower income but can justify that the house is needed at least for a period of time for the children.
There are personal and financial factors as well as legal issues that come into play. One person may not wish to stay in the house as they feel there are too many upsetting memories, or the parties may not be able to afford for either party to stay in the house and may agree it has to be sold. If one person does wish to buy out the other and they can agree, or a court orders this, they will need the mortgage company’s consent to take on the mortgage in their sole name and may also need to have an offer of a further advance or new mortgage to pay out the other person as well as pay the existing mortgage. Sometimes a party may need a guarantor or family assistance to be able to afford to keep the house or to buy an alternative.
If the parties do not agree between themselves there is no mathematical calculation as to how a court would decide who gets the house and how assets are split. The most important factor taken into consideration by the court will be ensuring that any children are adequately housed. Beyond that, there are a number of factors that will be taken into consideration such as contributions both financially and non-financial (such as bringing up children), length of the marriage and more often needs of the parties. In relatively low money cases, needs will often be the deciding factor. If the parties are married, even if the house is registered in the name of one party only, the other party has rights, can register a notice at the Land Registry to protect this and their interest will be decided taking the above and other factors into consideration, to try to find an outcome that is fair to both parties and meets the needs of any children. The house will not be dealt with in isolation, all the family finances including by way of example any savings, pensions, incomes and liabilities will be taken into consideration.
The courts can decide that the house should be transferred to one party and that they should pay the other a lump sum but that is not the only option. They may in limited circumstances transfer the house to one party outright, order that the house be sold and the proceeds divided in some way (not necessarily equally) or they could decide that one person should stay in the house and sell or buy out the other party’s share at a later stage e.g. when the children reach their majority or finish full-time secondary education or on that party’s remarriage or cohabitation for a period of time.
Mediation
Family mediation can help parties disclose their financial information to each other and try to reach an agreement as to how they should divide their family finances without having the acrimony and expense of court proceedings and putting decisions in the hands of a judge.
Whatever the situation, it is always important to take at least initial advice to be informed as to your rights so that you can make informed decisions for your future. Even if you reach an agreement, it is vital that this is legally documented to avoid either party attempting to go back on the agreement reached and potentially make further claims in the future.
We offer low cost fixed fee initial appointments to assist you with what your rights are and how you should move forward in your particular circumstances.
Written by Carol-Anne Baker – 18thOctober 2018
