Financial issues after separation for sole owners and their spouse or civil partner
Rules for sole owners on mortgage and maintenance payments on the breakdown of marriage or civil partnership.
Paying the mortgage
The position of sole owners and their spouses or civil partners in relation to mortgage payments can be summarised as follows:
where there is a mortgage in one person's name, that person is liable for the mortgage payments, regardless of who is occupying the property
where 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, they have the right to make payments towards the mortgage.[1] The lender cannot legally refuse the payments. The spouse or civil partner 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[2]
if the property has one 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 they are 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.[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 spouse or civil partner who doesn't own the home is not liable for the mortgage, they may be entitled, if eligible, to claim Income Support/Jobseeker's Allowance towards the interest on the mortgage loan payments. They could claim benefit if the owner is not making payments, and 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]
if 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 they are treated as liable to make payments for both dwellings, is treated as occupying both dwellings as their home because they have 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]
Court orders for financial provision for a spouse or civil partner
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.[9] 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 (see 'clean break orders' on the page on solutions involving the courts). 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.
Last updated: 23 February 2021