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When going through a divorce, one of the most important things to consider is how mortgage repayments will continue. Though this leads some couples to attempt to pay off the mortgage and then sell the house, sometimes tensions can arise when one spouse wants to remain in that house. This is especially true if one spouse was paying the mortgage wholly, or only his/her name appeared on the deed.
A common misconception however, is that if the mortgage belonged to the paying spouse, they then have a right to do what they want with said house, i.e. sell. Luckily, there are a few options available to the other spouse.
Option 1: Register your Home Rights
Under UK law, even if your name is not on the mortgage and you separate or go through a divorce, your ex cannot force you to sell. This is because you have matrimonial home rights as the matrimonial home is considered a joint asset between both you and your ex. Thus, so long as you register your matrimonial home rights through the Land Registry, you can stop your ex selling the house without your approval. By registering, your home rights will then legally be tied to the home and will appear on the relevant legal documents. If you don’t register, then legally, your ex could mortgage or sell the house without your knowledge. Worse still, you may have to leave the house and it could affect your claims for (e.g.) finances from the divorce.
To register your matrimonial home rights, you firstly need to determine whether or not your house is registered in your ex’s name. You can find out by researching the Land Registry’s property register, where official copies of required documents can also be requested. If the property is unregistered, then this information may appear on title deeds which are usually kept at solicitor’s or mortgage provider’s offices. With this information, you can then fill out the designated forms and register for your matrimonial home rights.
These rights will prevent your ex from selling your house and allow you to remain there until the divorce has been finalized. However, after such time you will have to leave.
Option 2: Take over the mortgage from your ex
If you want to remain in the home permanently, then you can refinance your home in your name. Simply, this means that you buy out your ex’s claim to the house and then the house belongs to you. To achieve this, you should include relevant language in your divorce decree and ensure your ex signs a Deed of Trust. The deed gives you rights and ownership over the house. You must then make your mortgage company aware of these changes so that they can remove your ex from his/her payments. There can be barriers to this step, meaning your ex’s name may remain on the mortgage and thus continue making mortgage payments. It is thus advised you agree with your ex a fair payment compromise to prevent potential disputes.
Before you consider this option, it’s advised that you consider whether this is actually feasible. Aspects such as income, property taxes and home insurance (amongst other expenses) can hinder refinancing and cause further issues down the line. Bearing in mind the legal costs too, it’s not a decision to be taken lightly.
Option 3: Rent from ex
Your ex may be open to keeping the house so long as you pay rent and this is consistently met. This could potentially save you the mortgage fees of Option 2 and the planning (e.g. Where am I going to live now?… What can I afford?) involved after Option 1. If he/she agrees to this option, then they will need to sort out a tenancy agreement, the details of the mortgage lender and tax rules amongst other things.
It may be worthwhile setting up a meeting to discuss this option with both your ex and required solicitors and sending over some useful information.
The above options provide suggestions that can help you remain in your home for as long as possible. As with anything concerning divorce, thoroughly assess your options, discuss them with your ex and ensure that you both are happy with the final decision.
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