Going through divorce or separation is stressful and upsetting, particularly when it comes to the division of property. If you and your spouse live in a mortgaged property there will be numerous factors to take into account when determining who is responsible for the payments. Ultimately your situation depends on your individual circumstances.
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When property is owned jointly, one or both parties could find themselves at a significant financial disadvantage in the wake of a divorce. For this reason it is important to obtain good advice from the outset. This is a very complicated area of law, and needs expert legal handling. Furthermore the law varies slightly between Scotland and the rest of the UK. As a rule, whoever is named on the mortgage documents remains liable for the repayments until a legally viable alternative arrangement can be secured .
A mortgage can be held jointly by a married or cohabiting couple, or may only be in one partner's name. Being married does not automatically give you a financial share of a property or of a mortgage on that property. While married, both parties have the right to remain in the matrimonial home, no matter which partner legally owns it or who pays the mortgage. If there are children involved, it is often the case that they will remain in the house with one parent, but this parent may not be the one named on the mortgage documents.
If yours is a joint mortgage then you are both liable for the mortgage payments, no matter who is living in the home. This applies even if you have moved out and your separated partner is in the house. If you move out but do not keep up mortgage repayments, this may adversely affect your ability to gain a mortgage or other credit in future. However, if you remain in the house and expect your separated partner to keep up with repayments, you risk losing your home if your ex-partner does not comply.
The court decides
Until you go to court, you cannot be forced to pay the mortgage on a property if your name is not on the mortgage. However, should you get a divorce, the courts may order you to pay your ex-partner's mortgage as part of an alimony arrangement. Alternatives include selling the property outright, or transferring the mortgage, depending on the individual circumstances of the case. In all cases you are advised to seek legal advice, in the first instance perhaps contacting the Citizen's Advice Bureau or National Family Mediation (see Resources).
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