Page 19 - November 2023

EXPERT ADVICE

Breaking up is hard to do

Nobody likes to think about it, but do you know what would happen to to you before your divorce was finalised, the will’s that can suit all parties. This is something you
current instructions would still apply – which you can request as part of a divorce settlement,
your home if you and your partner separated?
may not want to be the case. but something that isn’t enforceable if you’re
unmarried; in this instance, it would be helpful
in advance about what might happen if you were Don’t rely on hearsay to have an agreement in place prior to the
ever to split, and had made the necessary legal One of the most common pitfalls faced by relationship breakdown which states that one
arrangements prior to purchasing a property cohabiting, unmarried couples is the belief that partner would have the right and the means to
together. But of course, this isn’t always the case they are protected by ‘common-law marriage’ ‘buy out’ the other.
– so we’ve spoken to the experts to find out what after living with a partner for a certain amount
you need to know. of time. There is no such thing as common-law If you’re separating amicably, you may be able to
marriage in Scotland, and you are not afforded agree on a situation that suits you both, but if not,
spousal rights if you are unmarried, no matter you will need legal advice to reach a conclusion.
Assess your situation
Prior to marriage, or purchasing the property the length of time you have been together. It’s imperative that if you are unmarried and
together, did you take out legal agreements living together, you understand your rights and
confirming your rights as homeowners, or What if you aren’t named on the mortgage? what you’re not entitled to.
perhaps you signed a pre-nuptial agreement? Separation can be very detrimental if one partner
If either of these are applicable, your rights as isn’t named on the mortgage. It’s not uncommon What if the home isn’t paid for equally?
homeowners become much clearer for your that couples split the mortgage repayments It’s not uncommon for household bills to be
solicitor to navigate. If not, you’ll certainly need equally, but only one person paid the deposit for split differently according to separate incomes,
t’s a situation you never hope to find yourself to seek legal advice about your situation. the property, or just the higher-earning partner especially in a family setting where one partner
in, but it’s something that unfortunately was named as the mortgage holder. may earn less due to working part-time and
I applies to a third of married couples in If you are cohabiting, or about to take the plunge, raising children. In an instance where one partner
Scotland: we’re talking about divorce. it’s worth speaking to a solicitor for legal advice This can be difficult to navigate if only one half is paying the mortgage, and another is paying
prior to signing contracts. If one of you has of the couple is a named homeowner, because the household bills, you may be worried about
If you are separating from your partner, you contributed significantly more to the property it leaves the other in a vulnerable legal position, your rights to an equal share of the property if
will likely have many concerns, including how deposit, or perhaps one of you owns the as they can’t evidence ownership of the property. you haven’t paid an equal share of the mortgage.
it might affect your status as a homeowner. It’s property outright and the other is moving in, it An agreement as outlined previously would help
essential that you understand your rights, should makes sense to look at what formal agreements in that it would offer some certainty around Legal experts state they would look at the
the worst happen in your relationship – even if you should be making, to confirm your rights the return of your money in the event of the financial position of each partner at the beginning
that seems impossible just now. and protect your personal assets. Pre-nuptial relationship ending, but it wouldn’t give you of the relationship, and if there was a significant
agreements aren’t just for the rich and famous! ownership of the property. economic imbalance that wasn’t evened out by
The sad fact of the matter is that depending another contribution, there may be cause for a
on your circumstances, separating from your Update your will Can you buy out your partner? claim for compensation. There is an expectation
partner (whether you’re married or cohabiting) Maintaining an up-to-date will is recommended Something that may come up is the option for evidence to be provided for this, which is
can impact your rights to your home, and it can for all adults, but especially those with assets or for one partner to buy out the other partner’s where difficulties may arise, and one partner
be a difficult situation to resolve. However, with children. If you are separating from your partner share of the property. If one partner doesn’t may find themselves at a disadvantage – so legal
the right support and legal advice, there can be and you have a will, you should update it to want to leave the property, this is an outcome advice is a must if you’re in this situation.
a smoother way out of what is undoubtedly a reflect your current circumstances. Just 40% of
rough part of life. homeowners have an up-to-date will in place,
so make sure you keep yours aligned with your
As with many things, the recommended best current situation. If you’d like to know more about what happens to a property when you divorce or
course of action is to ‘prepare for the worst, separate, we have a dedicated episode of The ESPC Property Show podcast, with expert
hope for the best’ – which means that in an ideal It’s important to remember that if you don’t advice from legal professionals. Simply head to espc.com/advice/podcast for access to
world, you and your partner would have thought update your will, and something were to happen the latest episodes.

18 | espc.com espc.com | 19