Going to court
This content applies to England only.
Housing laws vary between England and Scotland. Get advice relating to Scotland
People go to court when they can't agree on a solution. Going to court can be time-consuming and costly, so problems are usually best settled out of court, for example, by using mediation or negotiation.
Pros, cons and alternatives to court
You should make sure you're clear on your rights before taking action, and will need to consult a solicitor before going to court. A solicitor should be able to give you advice about your options, and an idea of costs. It can be very expensive settling disputes in court, unless you are eligible for free or reduced cost advice under Legal Aid.
If you can (although it isn't always possible), you could try and negotiate with your partner. If you and your partner can’t talk alone without disagreeing, you could try mediation.
Mediation is different from counselling as it aims to reach practical agreements about finance, children and property by using a neutral third party (the 'mediator') to help you talk through issues. Mediation can have very positive long-term benefits as it can help build understanding between ex-partners.
What can the court do?
What the court can do depends on whether or not:
- you are married, or in a civil partnership and legally ending your relationship, or
- whether you are cohabiting (living with your partner).
The court's decision will also depend on whether you have children.
A court can:
- adjust legal ownership and beneficial interest
- make orders about who makes mortgage payments
- order a property to be sold or prevent a sale.
However, the court cannot change the name on a mortgage – this has to be agreed by the mortgage lender.
If you are legally ending your relationship
Courts can transfer the ownership of property on a long-term basis as part of divorce or dissolution proceedings. Properties can even be transferred from a sole owner to the non-owning partner. If the property is jointly owned, then it can be transferred into just one partner's name.
If a transfer is not requested at the time of divorce or dissolution, it is much harder to do later on, and then is normally only possible for the benefit of any children of the relationship.
If you are not legally ending your relationship
If you are cohabiting or aren't intending to legally end your relationship, you can only transfer a property through the courts if it would be for the benefit of any children of the relationship.
Court costs and procedure
Whether or not you have to pay court costs depends on your circumstances. You can read more about costs on the Ministry of Justice- HM Court Service website. You may not have to pay a fee if you are receiving certain benefits.
You can find out if you're eligible for legal aid using the legal aid calculator. How long your case will take depends on your circumstances - your solicitor should be able to give you more of an idea.
You may want to ask for help with filling in all the necessary forms. After filling these in, take them to them to court, where they will be checked and you will be given a date for your hearing. The date will depend on how busy the court is.
Using a solicitor
If you are planning to divorce, separate from or split up with your partner or dissolve your registered civil partnership, it is likely that at some point you'll need a solicitor to help you sort out your home and money issues. You may be able to sort some things out yourselves if you don't have children, or if you haven't been married or together for very long. But if you share lots of assets and can't agree how to divide them, you may need legal help.
Mediation can be useful in these circumstances, and provides a neutral third party to help you and your partner make decisions, and is likely to be cheaper than a solicitor.
If you decide you have to see a solicitor, you may only need to see them once, but it's best to find out where you stand. You will need a family law solicitor – find one through specialist organisations such as the Law Society or Resolution.
Solicitors' charges are based on how much time they spend on your case. Remember to get an estimate before you start, and that fees may go up as your case progresses. If you instigated the divorce, you may also be liable for court fees as well. However, it may be possible to get help paying costs if you're eligible for legal aid - see Court costs and procedure, above.