In short, yes they can. The fact that you pay the mortgage does not give you the right to require your spouse to leave the former matrimonial home. Both of you have the legal right to remain in the property until the financial element of your divorce has been settled, whether by agreement or by order of the court.
You will have to work out between you whether it is practical for one of you to leave the home. When considering this step, bear in mind that the time from the application for divorce to a final financial settlement is likely to take around 12 months, so you will need to work out whether you can afford to rent for such a long time alongside keeping up with the mortgage payments. Do not expect your ex-wife/husband to leave the property just because you are paying the mortgage. If they cannot afford to make the mortgage payments, then it is unlikely that they can afford to rent.
What gives her/him the right to stay in the house if she/he isn’t paying for it?
If the house is held in joint names, then you both have the legal right to occupy it no matter who is paying the mortgage. The legal provision is slightly different if only one party owns it and is set out in section 30 of the Family Law Act 1996 as follows:
s.30 Rights concerning home where one spouse or civil partner has no estate, etc.
(1) This section applies if—
(a) one spouse or civil partner (“A”) is entitled to occupy a dwelling-house by virtue of—
(i) a beneficial estate or interest or contract; or
(ii) any enactment giving the right to remain in occupation; and
(b) the other spouse or civil partner (“B”) is not so entitled.
(2) Subject to the provisions of this Part, B has the following home rights”—
(a) if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by except with the leave of the court given by an order under section 33;
(b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.
So, if your ex-wife/husband has not left the property then they can remain there until the conclusion of the divorce. If they have, they can apply to the court to come back.
If I am the sole owner, can I sell the house before the divorce has been completed?
If you are considering this step, it is worth bearing in mind that almost everything that the two of you own will be divided between you in the divorce no matter who is paying the bills, and that the court’s starting point will be to make an equal division of all of your property. You therefore have nothing to gain by taking this course of action, and potentially quite a lot to lose.
If you were to sell the house, then this will have the effect of making your ex-wife/husband homeless, which would be contrary to their right “not to be evicted or excluded” from the property. They would undoubtedly have to find somewhere to live, costing money which they would probably try to claim back from you at some point in proceedings, whether by applying for an advance payment of maintenance (“maintenance pending suit” – see below) or in the final settlement of the divorce proceedings.
Whenever the application is made, the court is able to take your conduct into consideration when deciding what you will have to pay. It would be difficult to persuade the court that your motivation for selling the house was anything other than an attempt to get them out of it. The court would take a very dim view of this, meaning that you would be running a very real risk of having to pay more money in the end. You will also have to spend money on finding somewhere else to live yourself.
It is also unlikely that the sale would go through anyway. If your ex wife/husband has taken legal advice then they will probably have registered their right to remain in the property with the Land Registry. This will show up as a “charge” on the property which will remain in place until the end of the divorce proceedings, so no sale will go through until this charge has been lifted.
Can I leave and just stop paying the mortgage?
This is not a good idea. First, if the mortgage in only in your name then you have a legal obligation to the lender to pay it. Failure to pay the mortgage will damage your credit score and make it less likely that you can buy another house once the divorce has been completed.
Your ex wife/husband is entitled to make payments towards the mortgage anyway under s.30 of the Family Law Act:
(3) If B is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by B in or towards satisfaction of any liability of A in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by A.
This means that your mortgage provider must accept payments from them, and they will have the same effect as if you had made them yourself.
How can my ex-wife/husband pay the mortgage without any income?
They can get the income from you. If they have no income, then they may apply for “maintenance pending suit” from you under section 22 of the Matrimonial Causes Act 1973:
(1) On an application for a divorce, nullity of marriage or judicial separation order, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the making of the application and ending with the date of the determination of the suit, as the court thinks reasonable.
It is important to note that these payments can be backdated to the date of the application for divorce, meaning that any mortgage arrears that may have built up between the time that you stopped paying the mortgage and the order for maintenance pending suit being made can be met by a backdated order against you. This application can also apply to any other bills.
Is there a legal way to evict my ex-wife/husband from the property?
You can apply for an occupation order under s.33 of the Family Law Act which can require them to leave or restrict them from entering certain parts of the property. Such orders are only made in extreme circumstances.
If it thinks that your circumstances warrant the making of an order, the court has the following powers:
(3) An order under this section may—
(a) enforce the applicant’s entitlement to remain in occupation as against the other person (“the respondent”);
(b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
(c) regulate the occupation of the dwelling-house by either or both parties;
(d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;
(e) if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner, restrict or terminate those rights;
(f) require the respondent to leave the dwelling-house or part of the dwelling-house; or
(g) exclude the respondent from a defined area in which the dwelling-house is included.
The court will only deny a party their right of occupation if it is necessary to do so, and they must take all the circumstances into account including each party’s housing needs, financial resources, the effect on any relevant child and the conduct of each party. These orders are often (but not always) associated with domestic violence. It is worth noting that the only time that the court must make an occupation order is:
(7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that—
(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
This is known as the “balance of harm” test. The court will look at what is likely to happen both if it were to make the order, and if it were not to make the order and carry out a balancing exercise regarding the degree of harm that would be suffered by either party and any children involved in either one of these circumstances. If the balance falls in favour of the applicant, then the order must be made.
While these orders are often associated with harm and domestic violence, it is clear that these factors do not have to be present for an order to be made under s.33. In the leading case of Dolan v Corby, the court stated that violence or the threat of violence does not have to be present for an order to be made:
“That would be to put a gloss on the statute which would be inappropriate. Chalmers v Johns and G v G stress that it must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence, and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”
If you consider that your circumstances might fall into the “exceptional” category then you should take legal advice as to whether an application for an occupation order is likely to be successful. Bear in mind that it will not be successful based solely upon the fact that you are paying the mortgage.
Should I leave the property?
Domestic life after separation can be very difficult to navigate, but you have just as much right to remain in the home until the conclusion of proceedings as your ex-wife/husband, so this is your decision to make. Deciding whether to stay or not is a question of balancing the difficulties of sharing your home with your ex against any potential negative consequences. It is worth noting that divorce can take anything from 6 months (if the finances can be agreed) to 18 months or longer. The more disagreement there is between you regarding finances, the longer it is likely to take.
If you do move out, then this can influence the eventual outcome, both financially and in respect of how much contact you have with your children moving forward, as it possible that you may end up setting a precedent that you did not mean to set. For example, if the children are well settled in having contact with you only at weekends then it may be difficult to change this in future. Similarly, if you have been able to afford to pay the mortgage and bills on the former matrimonial home as well as your own rent and bills on a new one, then it may be difficult to argue that you cannot afford to keep on doing so moving forward.
Every family’s situation is unique, so if you find yourself in this position then it is worth taking advice from a qualified Family Solicitor before moving out, so they can look at your personal circumstances and advise you accordingly.