In brief
When you split up and own a house together, your legal rights depend heavily on whether you are married or unmarried. Married couples both have a legal right to remain in the family home and the court has wide powers to divide property fairly under the Matrimonial Causes Act 1973, regardless of whose name is on the deeds.
Unmarried couples have far fewer rights, there is no such thing as “common law marriage” in England and Wales, and property disputes are governed by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). In either case, getting early legal advice can protect your position and help you reach a fair outcome. This guide explains your options and rights as they stand in 2026.
What are your rights when you split up and own a house together?
The answer to this question depends almost entirely on one thing: are you married or not?
Many people assume that living together for a long time gives you the same rights as a married couple. It does not. The concept of “common law marriage” does not exist in England and Wales. No matter how long you have lived together, an unmarried partner does not automatically have the same property rights as a spouse.
This is why it is so important to understand where you stand legally before making any decisions about the family home.
Splitting up when you are married
If you are married and own a house together, or even if the property is in only one spouse’s name, both of you have legal rights to the family home.
Home rights
Under the Family Law Act 1996, a married spouse who is not named on the title deeds still has a legal right to live in the matrimonial home. This is known as “home rights.” You can register a home rights notice with the Land Registry to prevent the property being sold without your knowledge.
How the court divides property
On divorce, the court has wide discretion to divide assets, including the family home, in a way it considers fair. The court considers a range of factors under Section 25 of the Matrimonial Causes Act 1973, including:
- The needs of each party and any children
- The length of the marriage
- Each person’s income, earning capacity, and financial resources
- The standard of living during the marriage
- Any contributions (financial or otherwise) to the family
Options for the family home
The most common outcomes for married couples are:
- Sell the property and divide the proceeds as part of the divorce settlement
- Transfer the property into one person’s sole name, often with a financial offset against other assets such as pensions
- A Mesher order – the sale of the home is delayed until a specific trigger event, such as the youngest child turning 18 or finishing full-time education. Read more about what a Mesher order is
- A clean break – where one party keeps the house and the other receives a larger share of other assets. Find out more about clean break orders
Whatever you agree, it is essential to record the arrangement in a consent order approved by the court. Without a consent order, your former spouse could make a financial claim against you in the future, even years after the divorce. Financial claims survive the final order in divorce unless they are formally dismissed by a consent order.
Splitting up when you are not married
If you are not married, the legal position is very different, and often comes as an unwelcome surprise.
You have no automatic rights
Unlike married couples, unmarried partners have no automatic right to a share of the property, maintenance, or pension sharing. The law that governs property disputes between unmarried couples is the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), not the Matrimonial Causes Act.
Joint tenants or tenants in common?
How you own the property makes a significant difference:
- Joint tenants – you each own the whole property equally. If one of you dies, the property automatically passes to the survivor. On separation, the starting point is a 50/50 split of equity
- Tenants in common – you each own a defined share (which does not have to be equal). Your share can be left to whoever you wish in your will
If there is a joint tenancy and one party does not want their share to automatically pass to the other on death, they can “sever” the joint tenancy, converting it to a tenancy in common.
What if your name is not on the deeds?
If only your partner’s name is on the title deeds, you may still be able to claim a beneficial interest in the property. This can arise through:
- Direct financial contributions to the purchase price or mortgage payments
- An agreement or understanding (even if not in writing) that you would share ownership
- Significant contributions to renovations that increased the property’s value
These claims can be complex and often require specialist legal advice. A cohabitation dispute solicitor can assess whether you have grounds for a TOLATA claim.
Cohabitation agreements
If you are buying a property with a partner and are not married, a cohabitation agreement can set out clearly what happens to the property if you separate. While not automatically legally binding, a well-drafted agreement is strong evidence of what was intended.
Where children are involved
If you have children together, you may be able to apply under Schedule 1 of the Children Act 1989 for the court to make property or financial provision for the children. This could include an order that the family home is not sold until the children reach adulthood, similar to a Mesher order for married couples, although the property would ultimately revert to its legal owner.
What happens to a joint mortgage when you split up?
Whether you are married or unmarried, if you have a joint mortgage, you are both equally liable for the repayments. This remains the case even if one of you has moved out.
If one person stops paying their share, the other must cover the full amount or risk arrears, missed payments on your credit record, and ultimately repossession. You should speak to your mortgage lender as early as possible if you are separating.
Your options
- Sell the property, repay the mortgage, and split any remaining equity
- One person buys the other out and remortgages in their sole name
- Keep the joint mortgage temporarily if, for example, a Mesher order or similar arrangement is in place
Getting your name off the mortgage
To remove your name from a joint mortgage, the remaining person will usually need to remortgage in their own name. The lender will assess whether they can afford the repayments alone. Until this happens, both names remain on the mortgage and both are responsible for payments.
How to buy your partner out of a shared property
Buying out your partner is one of the most common ways to resolve property ownership on separation. Here is how it typically works:
- Get the property valued – instruct an independent valuation (or agree on a value between you). Using an RICS-qualified surveyor is advisable
- Calculate the equity – deduct the outstanding mortgage balance from the property value
- Consider any costs of a potential sale at a later date– this might be relevant when it comes to determining each person’s share
- Determine each person’s share – for married couples this is based on the overall divorce settlement; for unmarried couples it depends on ownership type (joint tenants or tenants in common) and any beneficial interest claims
- Arrange a remortgage – the person keeping the property will need to remortgage in their sole name, raising enough to pay the other party their share
- Transfer the title – a solicitor will handle the legal transfer of ownership at the Land Registry
For example, if a property is valued at GBP 300,000 with an outstanding mortgage of GBP 150,000, the equity is GBP 150,000. If owned as joint tenants, each person’s share would be GBP 75,000. The person staying would need to remortgage for GBP 225,000 (GBP 150,000 existing mortgage plus GBP 75,000 buyout).
Get expert legal advice
Splitting up when you own a house together is one of the most financially significant decisions you will face during a separation. Whether you are married or unmarried, a family law solicitor can help you understand your rights, negotiate a fair outcome, and make sure any agreement is legally binding.
At Woolley & Co, we offer a free 30-minute consultation with an experienced local solicitor. We work across England and Wales, and our price promise means no hidden fees.
Call us on 0800 321 3832 or request a call back to speak to a solicitor today.
Frequently asked questions
Can I be forced to sell my house in a divorce?
Yes. If you cannot agree on what happens to the property, the court can order a sale as part of the divorce settlement. However, the court will always consider the needs of any children first, which may mean a sale is delayed through a Mesher order.
How do I get my name off a mortgage with my ex?
The most common route is for your ex to remortgage the property in their sole name. This requires them to qualify for a mortgage on their own. Until this is done, you remain jointly liable for the repayments.
What if my name is not on the deeds but I have paid towards the mortgage?
If you are unmarried, you may be able to claim a beneficial interest in the property under TOLATA 1996, based on your financial contributions and any agreement or understanding about ownership. If you are married, the court can divide the property regardless of whose name is on the deeds.
I own half a house – what are my rights?
If you are a joint owner (whether as joint tenants or tenants in common), you have a right to your share of the property. You cannot be forced out of the property without a court order. If you cannot agree on what to do with the property, you can apply to the court for an order for sale under TOLATA.
What happens to the house if we have children?
For married couples, the court will prioritise the housing needs of any dependent children, which may mean the parent with primary care of the children remains in the home until the children are older. For unmarried couples, an application under Schedule 1 of the Children Act 1989 can achieve a similar result, although the property ultimately reverts to its legal owner.
What is the difference between joint tenants and tenants in common?
Joint tenants own the property equally – if one dies, the other automatically inherits the whole property. Tenants in common each own a specified share, which can be unequal and can be left to anyone in a will. On separation, the type of ownership affects how the property is divided.
Related Articles
- Your rights to stay in your home when you separate
- What am I entitled to in a divorce settlement?
- What is a clean break order?
- What is a Mesher order?
- What is a home rights notice and how to get one?
- Unmarried couples owning property together – the law
- Does my husband have to pay the bills until we are divorced?
