Mortgage, loan and maintenance payments after separation

The position of married and civil partner joint owners in relation to mortgage payments can be summarised as follows:

• where there is a mortgage in joint names, both parties are jointly and independently liable for the mortgage payments, regardless of who is occupying the property. In a relationship breakdown situation, if one party leaves the property and stops contributing to the mortgage payments, the lender is entitled to require payments from the remaining party to cover the entire mortgage, and it is not possible for the remaining party to argue that s/he is only liable for a particular share. This is known as 'joint and several liability'

• where there is a joint mortgage, either party can make payments and either is entitled, if eligible, to claim Income Support/Jobseeker's Allowance towards the interest on the mortgage loan payments.[1] Where the property is a leasehold property, maintenance, service charges and ground rent can be included as housing costs which are eligible for benefit[2]

• where there is a joint mortgage and the partner who has left is claiming income support/jobseeker's allowance towards the interest on mortgage payments, benefit can be paid on two homes if s/he is treated as liable to make payments for both dwellings, is treated as occupying both dwellings as her/his home because s/he has left and remains absent through fear of violence, and it is reasonable that housing costs should be met on both the former and the present dwelling.[3] Payment can also be made for up to four weeks if the partner has moved into a new home permanently and the liability for payments on two homes is unavoidable[4]

• where there are joint owners but there is a mortgage that is in one name only, if the spouse or civil partner who does not have the mortgage liability wishes to remain in the property, s/he has the right to make payments towards the mortgage.[5] The lender cannot legally refuse the payments. The joint owner whose name is not on the mortgage will only be liable for mortgage payments where the court makes an occupation order transferring mortgage liability temporarily [6]

• where there are joint owners but there is a mortgage that is in one name only, the joint owner who is not named on the mortgage deed may, if eligible, claim income support/jobseeker's allowance towards the interest on the mortgage loan payments.[7]

If one of the joint owners wants to raise a loan on the property then, whether the joint owners are beneficial joint tenants or tenants in common, the written consent is needed of the other party. If given, written consent can only be set aside if the party signing can show s/he signed under undue influence from the other party, or misrepresentation or fraud has taken place (see the Joint owner wants to set aside a sale for details).

Where the couple have taken proceedings for divorce, dissolution of civil partnership, judicial separation or nullity, the court may order periodical payments (maintenance) from one spouse or civil partner to another.[8] The payments can be for whatever amount the court sees fit, according to the same criteria as for property adjustment orders under the Matrimonial Causes Act 1973. The order can be made for as long as the court sees fit, subject to the 'clean break' considerations under the same Act. If an order for maintenance has been made, it is possible to apply to the court for it to be varied, unless the court has ordered otherwise.