Ask a solicitor: What's the fair way to split the house after a break-up?

Thankfully, we did not have children together, and it is quite amicable, but he has moved out and wants his share of the house in money.

He is saying that we need to sell the house and divide the proceeds once the mortgage has been paid between the two of us. I would like to stay in the house – I do not want to move back in with my parents. What advice would you have and what are my options?

Dear Reader,

This is a difficult situation, but at least you are amicable, and you do not have to deal with matters such as access and maintenance if you have a child or children together. 

You also have not mentioned whether there was any paperwork in place, such as a co-ownership agreement, which would dictate what would happen if one of you wished to sell, what would happen on each other’s death, etc., so I am assuming you do not have that in place.

If you wish to keep the house, then you would need to speak with your bank as to whether you can take over the loan in your sole name, and allow your ex-partner to come off the mortgage, so that is your first port of call to see if you can remortgage on your own or take over the mortgage on your own, thereby seeking officially the bank’s consent to same. You would also have to be in a position to buy out his share in the property, less his share of the mortgage.

The property would need to be valued by an auctioneer, and you would need to come to an agreement on a figure to be given to him so that he can sell his share in the property to you. the bank would need to consent to you only going on the Title and the mortgage.

This can take time to hammer out, so it is best to speak with your bank directly first and also to get the property valued.

It can be quite messy if he is not agreeable to accepting a certain figure or if you are not in a position to pay him any more than a certain figure, and if an agreement cannot be reached and you are not agreeable to a sale, he can make an application for a partition before the Courts and force a sale. Distribution of the net proceeds is then made to the individuals in the shares to which they own the property.

As it is not possible to subdivide a house, the Court will order a sale. This will obviously mean increased legal fees for both you and your ex-partner. 

The most practical and sensible approach would be for you and him to reach an agreement. It might not be possible between yourselves directly, and you might both need to instruct solicitors to try to hammer out an agreement that you would both be reasonably satisfied with. 

I have not been given any information as to what profit the property would likely make, how much equity is in the house, and the amount owed on the mortgage to date.

I note it is too late for you, but I always advise anyone thinking of buying a property with a friend, colleague or even a boyfriend or girlfriend, to avoid future problems to agree at the outset who owns what under what terms and what should happen to the property should one or more want to sell or maybe need to move or if the relationship breaks down or someone dies. 

There needs to be a formal contract, ideally drawn up by a solicitor, and both parties need to receive independent legal advice.