Much has been written in the media recently about a rise in the number of pre-nuptial agreements being signed, all in order to protect property investments from the bank of mum and dad.

Young couples are increasingly relying on parental help to get a foot on the property ladder, and it seems mum and dad are not willing to risk losing that investment to their child’s partner should the relationship break down.

So, without a pre-nup, what happens to your property when your relationship breaks down?

When a couple marry, they immediately have the right to make a claim against the other person’s property, regardless of who paid for it originally, which means a court could rule a 50-50 split in the event of a divorce, even if one party (or their parents!) put in the full deposit.

The first thing to establish is who owns the property.  If you both own the property the purchase will either have been made as ‘joint tenants’ or ‘tenants in common’.  Join tenants own the property jointly and equally, as the name suggests, whereas tenants in common own a percentage of the property each.  If you can’t remember what the set up was when you purchased the property, or the paperwork is not easily available, you can do a simple search with the land registry for under £5.

What about the mortgage?

If you’re both named on the mortgage, you are both legally liable for the full debt, so don’t be fooled into thinking you only have to pay 50% of the mortgage when you separate.  It’s important to contact your mortgage provider as soon as possible to explain what is happening, especially if you have any concerns about whether your partner will continue to contribute to the mortgage.  Your lender will be able to inform you of any mortgage help you’re entitled to, or may consider temporarily switching you to an interest-only mortgage in order to reduce the payments while you make long term arrangements and settle your finances.

Are things different if children are involved?

If children are involved things may be slightly different – the court’s primary consideration when considering property will be to ensure the children suffer as little disruption as possible. There are several possible scenarios, including:

• Property remains jointly owned, but the primary carer is entitled to stay in the property until the children reach the age of 18
• Ownership may be transferred to the main carer, but they will then get a smaller share of any other joint possessions/additional property
• Ownership may be transferred to the primary carer with a legal agreement that the former partner is entitled to a certain percentage when the property is sold
• The property is sold and the profit split between both partners (the percentage split will be determined by a court, unless a pre-nuptial agreement is in place)