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Common Scenarios

My former partner wants the house but can't release me from the mortgage

You could insist on a sale to ensure your release from the mortgage whilst also receiving your share of any equity at the same time.

However, negative equity might make a sale impossible or you may not want the other party to lose the property. Children may also be relevant as dealt with below.

A Separation Agreement can potentially manage such an agreement. It could declare that the property is now "owned" by one party in return for paying the other party their fair share of any equity. The new owner can then confirm responsibility for all outgoings, including any mortgage. Further, it could declare that the non owner is to be released from any mortgage when the new owner can do so or by a set date, allowing otherwise for the property to be sold to acheive the same result.

I have children and wish to stay in the property?

If the property is in joint names

It will depend on the individual circumstances of your case. S15 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) sets out the relevant factors although these are not exhaustive.

These factors include the common intention of the parties when the trust of land was created; the purpose for which the trust was held, the welfare of any minor living in the property, the interests of any creditor and the wishes of the equitable owners.

There is no presumption of sale.

Given the specific reference to the welfare of any children then any children may provide a good argument to remain in the property but other factors may override this.

If the property is not in your name

If you can establish a share of some sort then the position is essentially as set out above.

If you can't, then it is possible to make a claim under the Children Act 1989. Such claims aren't commonly pursued. Case law tends to centre on very rich fathers. There is also a lack of confidence in Judges providing families with the sort protection that often comes with married couples or those in Civil Partnership Agreements. If a party is successful it is often in obtaining a right to stay in the property for the benefit of any children with the property then being returned at a later date. It is effectively a loan.

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