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Paying the mortgage

This content applies to England & Wales

This section describes the position regarding mortgage payments for cohabiting sole owners and non-owners.

The position of cohabiting sole owners and non-owning cohabitants in relation to mortgage payments can be summarised as follows:

  • where there is a mortgage in one person's name, s/he is liable for the mortgage payments, regardless of who is occupying the property
  • where the person with the mortgage liability has left the home and stopped making mortgage payments, the other party may want to pay the mortgage so as to avoid possession proceedings being taken by the lender. The lender has no legal obligation to accept payments, but may do so anyway. In the short term, a cohabitant may be able to obtain an occupation order that will include the right to pay the mortgage loan but not the liability for it,[1] unless the court makes provisions transferring liability temporarily[2]
  • if the property has a sole owner but there is a mortgage in joint names, then 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 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 or Jobseeker's Allowance towards the interest on the mortgage loan payments.[3] Where the property is a leasehold property, maintenance, service charges and ground rent can be included as housing costs that are eligible for benefit[4]
  • where the non-owning cohabitant is not liable for the mortgage, s/he may be entitled, if eligible, to claim Income Support or Jobseeker's Allowance towards the interest on the mortgage loan payments. The non-owning cohabitant could claim benefit if the owner is not making payments and s/he must make payments in order to continue to live in the home.[5] Where the property is a leasehold property, maintenance, service charges and ground rent can be included as housing costs that are eligible for benefit[6]
  • where there is a joint mortgage and the partner who has left is claiming Income Support or 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.[7] Payment can also be made for up to four weeks if the cohabitant has moved into a new home permanently and the liability for payments on two homes is unavoidable.[8]

 

[1] s.36(13) Family Law Act 1996.

[2] s.40(1)(a)(ii) Family Law Act 1996.

[3] para 2(1)(a), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 2, Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

[4] para 17(1), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 16(1), Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

[5] para 2(1)(b), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 2(1)(b), Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

[6] para 17(1), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 16(1), Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

[7] para 3(6)(a), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 3(6)(a), Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

[8] para 3(6)(c), Sch.3 Income Support (General) Regulations 1987 SI 1987/1967; para 3(6)(c), Sch.2 Jobseeker's Allowance Regulations 1996 SI 1996/207.

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