How does a joint mortgage affect property rights?

When a relationship breaks down and one side has not been paying their share, how is home ownership affected? And what can be done about child maintenance?
Question: My sister has just fled from her home with her baby because she was suffering domestic abuse. She has a joint mortgage with her partner, but he has not contributed to the bills, mortgage or upkeep of his daughter, apart from the first three months. Is there anything she can do to ensure he does not get half of the property, or will this be a very expensive lesson in joint mortgages?
 
Answer: They have a joint mortgage and so are jointly and severally liable for it. They are joint owners of the property and could be either tenants in common or joint beneficial owners. We do not know which, but unless they have made a declaration of trust confirming that they own the property in unequal shares, they are likely to each own 50 per cent of the property.
 
If the property goes up in value, your sister’s partner will benefit, even though he has contributed very little financially. Your sister should ask her partner to agree to the property being transferred into her sole name.
 
However, to keep the existing mortgage, she would have to satisfy the lender’s criteria for lending. If her partner does not agree to the transfer of the property, then your sister could apply to the court for an order for sale.
 
She may also wish to consider applying to the Child Maintenance Service for extra financial support. If she can reach an agreement with her partner, then a family-based arrangement can be set up.
 
But if an agreement is not possible, she can apply to the statutory Child Maintenance Service, who could set up an arrangement for her.
 
What's your problem?
If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona is legal director in the real estate group of Foot Anstey LLP in Exeter (fiona.mcnulty@footanstey.com)
 
These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.

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