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Buying Your Ex Out of the Family Home

By: Jeff Durham - Updated: 26 Oct 2018 | comments*Discuss
 
Buying Out Ex-partner Buying Partner Out

When it comes to getting divorced one of the main issues you’ll have to face is where you intend to live. Your options are going to be determined by many things like finance, both partners’ wishes and if there are any children to consider.

If you have a joint mortgage, this may mean applying for another mortgage in your own right which may be possible if you’ve built up sufficient equity in your joint arrangement and earn enough to pay off a new mortgage in your own name after you’ve factored in any equity that you’re entitled to. However, this isn’t always possible. Often, you’ll find that it’s the partner with the greater income who is the one who wishes to be bought out and the partner earning less might simply not be able to afford to stay in the home as they might not be able to meet the repayment of a new sole mortgage agreement on the existing property.

Why Your Equity Might be More Than You Think

When couples split up, it’s often assumed that if they are both contributing the same sum to their monthly mortgage repayments that any sale of the house is split 50-50 if they decide to go their separate ways, but that’s not necessarily the case. If an amicable agreement cannot be made, a good solicitor can often look to raise the equitable value of one partner’s share. For example, it might be that one partner has spent a considerable amount of extra money and time in making home improvements, even though the joint mortgage is split 50-50. Therefore, this additional expenditure could be taken into account in terms of the division in equity if an amicable settlement can’t be reached.

Children

The situation of the fair division of a home’s value can be made more complex if children are involved. If, for example, it’s the wife who is looking to buy out her ex-husband but doesn’t think she’ll be able to afford a mortgage in her own name, she may find that it is possible if the husband agrees that the children should stay in the family home as this can then be used to offset a percentage of child maintenance payments that would be due meaning the husband then gets less of a share of the home’s market value whilst also making it affordable for the wife and children to stay there.

Going to Court if an Agreement Cannot be Reached

If no settlement can be reached on the division of the house, a court may decide that ownership should be transferred from one person to another. However, it cannot transfer liability for the mortgage from one person to another without the lender’s consent. The problem here is that the lender may not be willing to transfer the mortgage if there are any existing arrears or if they believe that the new sole owner will be unable to keep up the repayments on their own so if they refuse to transfer the existing mortgage arrangements, the original owner or joint owners will still have to keep up repayments. Therefore, where a situation is not cut and dried or there are disagreements as to what each partner thinks they are financially entitled to in terms of transferring the home to the other partner, then you need to seek legal advice.

Once an Agreement Has Been Reached

Once a settlement has been reached, however, it’s important to check the deeds to your house. In many cases, they contain a ‘survivorship’ clause which entitles the other partner to a share of the house should one partner die, so you need to make sure that once the property is in a sole partner’s name that you have the other partner removed from the deeds or else they could still make a claim on your estate in the future, even if you have split up. Once again, sound legal advice is very important in this regard.

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My husband left 8 years ago no children, left to be with his mistress, i have been paying mortgage bills repairs etc for 7 1/2 years, been tryi g to get him to sign consent order agreed everything at mediation, hes been stalling, changing wording etc on the Consent Order. As house prices have risen hes now wanting half the equity! Is it true that hes only entitled to half the equity, up until the date he left me.
Me me - 26-Oct-18 @ 2:42 PM
My self and my husband are separating and our boys (23 and 17) still live at home. Our 17 yr old is no longef in education. Our daughter(20) is independant. Also, i have worked from home as a childminder for 23 years.Our mortgage is paid off. Mg husband wishes to sell the ptoperty in 6mnths when our youngest turns 17. Can he force me to do this when i run my business from home?
Becky - 26-Oct-18 @ 7:11 AM
My wife and I have recently ended our marriage. We have a mortgage on a house together, which I owned with my father before we married, but once married 3 years ago, we remortgaged and paid my dad off and my wife came onto the mortgage. She has 2 children from a previous relationship and we have 1 child together. She's now refusing to let me buy her out of the house and also to buy me out, stating she wants to stay in the home instead. Am I stuck with the situation of waiting until my 3 year old is 18 before being able to either buy her out or being bought out?
Marco - 9-Oct-18 @ 11:04 AM
My boyfriend separated from his defacto wife of 19yrs 2 years ago, the made private agreements that he would pay her off for the family home for which he is still paying mortgage for and he is paying that by himself, she decided to continue to live in the home till paid out in full, she never has had to pay for any bills... he paid her out 6 months ago for the total of $100,000 - he never expected her to pay any bills during this, but now she wont leave and wont stick to any agreements - how can he make her leave?
Vi Vi - 15-Sep-18 @ 11:33 PM
Hi, my husband and I separated 6 years ago. He moved out into rented accommodation and has stayed there. We have 4 children now aged 23, 21, 13 and 11 all living with me. When my ex left he ceased paying the mortgage and gave me £80.00 per month for the children. My question is will he be entitled to half the house, he believes he is. He is happy, for now, for usto remain in the family home but i know, some time soon he will want some money from the house. The mortgage is paid off now. But i have paid approx £44k off more than he has. The house is worth £300-350k. I have also updated the house costing me a further £20k. Please advise me
pixie - 8-Sep-18 @ 3:02 PM
allmac - Your Question:
Recently divorced and the financial order stipulated the sale of the family home with a 50/50 equity split. I’m responsible for the mortgage payments and live in the family home with 1 dependent child. House has been up for sale for about 6 months and the market is quiet so no hope it will be sold this year. I’m now able to remortgage (due to a change in circumstances) and pay my ex-spouse the required equity split but she has refused my offer knowing her share of the equity will increase with each mortgage payment. Can I force her to accept my offer to buy her out and remover her from the mortgage and deeds?

Our Response:
If your ex doesn't agree, then your only recourse would be to refer the matter back to the courts. If you live in the house with one dependent child, then it is likely the courts will allow this. Before you refer the matter back to court, a solicitor's letter stating that if your ex doesn't comply, then you will be forced to take the matter back to court may work.
DivorceResource - 7-Sep-18 @ 10:39 AM
I left my husband almost a year ago due to domestic abuse. After myself and my 9 year old son lived with family members for 3 months, I eventually rented a property for us to have a home. We are still awaiting divorce and financial settlement. However, I was wondering if it would be possible for myself and my son to move back to the marital property and my husband have to move out? This is because my son is quite unsettled and misses his home and friends. Thankyou
Robbo - 6-Sep-18 @ 6:10 PM
Recently divorced and the financial order stipulated the sale of the family home with a 50/50 equity split. I’m responsible for the mortgage payments and live in the family home with 1 dependent child. House has been up for sale for about 6 months and the market is quiet so no hope it will be sold this year. I’m now able to remortgage (due to a change in circumstances) and pay my ex-spouse the required equity split but she has refused my offer knowing her share of the equity will increase with each mortgage payment. Can i force her to accept my offer to buy her out and remover her from the mortgage and deeds?
allmac - 6-Sep-18 @ 2:06 PM
my wife wishes to divorce and buy me out of the marital home with financial help from her parents. we have agreed to have the children 50/50,we have 3 , which she is more than happy to do. can I also request extra deposit I put down out of personal money ontop the agreed equity ?
john - 28-Aug-18 @ 12:34 PM
Nicky - Your Question:
Split from my husband he wants me to buy him out I don't work as I am bring the boys up we are divorcing he wants me to give him £35.000 and get the mortgage in my name but I won't be able to afford it

Our Response:
Mediation may be an option for you to consider. Mediation is when two or more parties meet to resolve problems before the matter reaches court. It is most often used in family proceedings, contact orders, residence agreements and divorce. It is a formal negotiation and courts can accept the agreement of the mediation instead of having to go through the court process, although it is subject to final court approval. If you cannot agree through mediation, then the only other option is court. the court will always put the best interests of your children first before making a decision regarding whether you should sell the house or not. The courts can allow a primary carer to remain in the house until the children leave full-time education. However, much would depend upon affordability etc.
DivorceResource - 17-Aug-18 @ 12:15 PM
ZeroTomcat - Your Question:
Yes I have suggested mediation and it was refused! But surely it is in the best interests of the children both parents can provide a suitable home and one parent can not be tied down because of the others refusal to release control??

Our Response:
Unfortunately, if your ex will not come to an agreement with you only a court can decide if and where your ex refuses mediation.
DivorceResource - 17-Aug-18 @ 11:59 AM
Split from my husband he wants me to buy him out I don't work as I am bring the boys up we are divorcing he wants me to give him £35.000 and get the mortgage in my name but I won't be able to afford it
Nicky - 17-Aug-18 @ 9:57 AM
Yes I have suggested mediation and it was refused! But surely it is in the best interests of the children both parents can provide a suitable home and one parent can not be tied down because of the others refusal to release control??
ZeroTomcat - 17-Aug-18 @ 7:27 AM
ZeroTomcat - Your Question:
My wife ended our 5 year marriage nearly 3 years ago and still lives in the former marital home with her (now 2nd) partner who has moved in. I am still on the mortgage and want off so I can get my own mortgage again and move on with my life. She has told me the new partner is paying half the mortgage so the house is as much hers and my ex wife’s. I have asked many times for either my initial deposit or the house valued and me given the appropriate amount. But she simply says she is not ready to assume this debt on her own What can I do?? I say anything I get claims I’ll make the kids homeless. I can’t seem to win, I’m scared to go to court as we did for child arrangements she lied and the family judicial system heavily favours mothers, so to go from having 50/50 custody to simply having the kids “spent time (but not live with) me” I have already lost all faith in family courts. What can I do??

Our Response:
Have you suggested mediation to your ex? This would be the next option where you cannot agree between you. It may be that your ex cannot afford to buy you out and it may be that your ex or her partner do not wish to buy the house together. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first and this main issue will determine the outcome of any application for an order. The link here, may also help you further.
DivorceResource - 16-Aug-18 @ 10:10 AM
My wife ended our 5 year marriage nearly 3 years ago and still lives in the former marital home with her (now 2nd) partner who has moved in. I am still on the mortgage and want off so I can get my own mortgage again and move on with my life. She has told me the new partner is paying half the mortgage so the house is as much hers and my ex wife’s. I have asked many times for either my initial deposit or the house valued and me given the appropriate amount. But she simply says she is not ready to assume this debt on her own What can I do?? I say anything I get claims I’ll make the kids homeless. I can’t seem to win, I’m scared to go to court as we did for child arrangements she lied and the family judicial system heavily favours mothers, so to go from having 50/50 custody to simply having the kids “spent time (but not live with) me” I have already lost all faith in family courts. What can I do??
ZeroTomcat - 15-Aug-18 @ 7:01 AM
@Tabby - you can't charge him for 'would haves' only fees that have occurred and need to be split.
JulesT - 14-Aug-18 @ 11:25 AM
Eli - Your Question:
My wife was having an affair and told me I had to move out so her and the kids could stay in the house once I left she moved he new partner straight in we had only had the mortgage for a couple of years they have lived together there for 10month and I have refused to pay any of the mortgage although I pay a good amount of child maintenance Does she have to buy me out or am I entitled to her buying me out?

Our Response:
You would have to agree between you. Much depends upon whether you can afford to buy her out and/or likewise. If you cannot agree between you and you want the situation to be resolved, then court would be the next option to consider.
DivorceResource - 13-Aug-18 @ 2:31 PM
I am going through a divorce. My ex is agreeing for me to buy him out. Once calculating the equity (property worth now minus what is left to repay on the mortgage) does one also have to take into account the fees that would have been incurred on needing to sell the house - e.g. agency fee to sell and penalty for terminating the mortgage early? Thank you
Tabby - 13-Aug-18 @ 1:54 PM
My wife was having an affair and told me I had to move out so her and the kids could stay in the house once I left she moved he new partner straight in we had only had the mortgage for a couple of years they have lived together there for 10month and I have refused to pay any of the mortgage although I pay a good amount of child maintenance Does she have to buy me out or am I entitled to her buying me out?
Eli - 10-Aug-18 @ 2:17 PM
Teddy - Your Question:
My husband of one year wants a divorce, he has cheated on me several times. We have a joint mortgage. He wants to buy me out. I don't want him to buy me out this will be easy for him. I don't want the house but I don't want him to have for his lover to move in. How can I stop him buying me out

Our Response:
Unless you can afford to buy your husband out and/or if you cannot come to an agreement between you about seling the house, then your ex can take the matter to court for the court to decide what happens. If the matter goes to court, it will cost both of you in court fees etc. The only people who benefit financially in such cases are the legal representatives.
DivorceResource - 10-Aug-18 @ 11:14 AM
My husband of one year wants a divorce, he has cheated on me several times. We have a joint mortgage. He wants to buy me out. I don't want him to buy me out this will be easy for him. I don't want the house but I don't want him to have for his lover to move in. How can I stop him buying me out
Teddy - 9-Aug-18 @ 8:57 PM
My ex wife wants to buy my share of the house for £56k, there is no mortgage. Would I have to pay capital gains tax
Gazza - 7-Aug-18 @ 7:18 PM
@Pete m - have you thought of coming to an agreement via mediation or through a solicitor? If you can agree between you what's going to happen to your partner's aunt, then this would be probably best.
Jess80 - 6-Aug-18 @ 12:50 PM
Hi I have been with my partner for 14 yrs she has recently told me that she wants to separate, we aren't married, we have a 7 yr old child together , and a sick aunty of hers living in a granny flat ( extension we had built for her ) next door, the house is worth around 180,000 and we have 87,000 left to pay on it, as I haven't asked for any of this my partner is willing to let me buy her out, but wants to leave the sick aunty in the granny flat as she has cancer and doesn't want to move her, it's a joint tenancy mortgage could you give me any advice on the matter , especially The aunty as she doesn't contribute anything rentwise.
Pete m - 4-Aug-18 @ 10:52 PM
Strawberry - Your Question:
My and my ex husband got married in November 2006 and in November 2007 we bought a home and land it was all in his name he decided to keep cheating and we decided to go out separate was in October of 2010 and in the separation agreement he was to buy my part out of the home he has only paid me 100 dollars on it and our divorce was final in April 2012 he got remarried in June of 2012 and I am still having trouble getting the money from him over the home what should I do can I take him court to get it and or get interest also please help me

Our Response:
If your ex is refusing, then court would be the only option. You would have to seek advice in your own country as we are a UK-based site, so can only answer UK-based questions.
DivorceResource - 3-Aug-18 @ 12:31 PM
Need2Know - Your Question:
Hi,My husband and I have been married for 4 years and we have a 2.5 year old daughter. He has been unfaithful since we've been married and continue to have the wandering eye. I have given him many chances but feel like its time to split. I am a US citizen and he is British. We live in a house (£800k, 4 bd) that was mostly paid for by his father and is under my husband's name. There is a small mortgage of (£100k). He is a high earner and I am a stay at home mum. Would the courts allow me to stay in this house or would they make him sell and provide another accommodation for us? Could I ask him to purchase a home for me and my daughter in full or would they allow him to take out a mortgage?

Our Response:
Unfortunately, I cannot predict what a court may decide. A court will put the interests of your child first and ensure your child has a roof over her head (if you continue to be the primary carer). However, if your husband's father put money into the home then on the sale of the house it is likely his money would be returned to him. Another factor that would be taken into consideration is the marriage has been short. You may wish to seek legal advice.
DivorceResource - 3-Aug-18 @ 9:39 AM
My and my ex husband got married in November 2006 and in November 2007 we bought a home and land it was all in his name he decided to keep cheating and we decided to go out separate was in October of 2010 and in the separation agreement he was to buy my part out of the home he has only paid me 100 dollars on it and our divorce was final in April 2012 he got remarried in June of 2012 and I am still having trouble getting the money from him over the home what should I do can I take him court to get it and or get interest also please help me
Strawberry - 2-Aug-18 @ 3:14 PM
Hi, My husband and I have been married for 4 years and we have a 2.5 year old daughter. He has been unfaithful since we've been married and continue to have the wandering eye. I have given him many chances but feel like its time to split. I am a US citizen and he is British. We live in a house (£800k, 4 bd) that was mostly paid for by his father and is under my husband's name. There is a small mortgage of (£100k). He is a high earner and I am a stay at home mum. Would the courts allow me to stay in this house or would they make him sell and provide another accommodation for us? Could I ask him to purchase a home for me and my daughter in full or would they allow him to take out a mortgage?
Need2Know - 2-Aug-18 @ 12:34 PM
@jojo i have done exactly that. He has asked them for a variation to include the mortgage. They have an 18 month backlog!!! I cannot believe that I have no say. Ive cateogorically told them i do not want the motgage paid as a substitute for maintenance. Not at all. They said its simply a question of does he pay it or not. If he does then it gets taken into account. The system allows men to control and abuse when its operated this way.
KC - 26-Jul-18 @ 1:04 PM
@KC - easy, why don't you just apply for child maintenance via CMS? You are entitled to - then you can choose whether you wish to put the money towards the mortgage yourself.
Jojo - 26-Jul-18 @ 10:48 AM
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