My marriage is in crisis and I’m wondering who has more rights on the property

<span>Photograph: Alamy</span>
Photograph: Alamy

Q I would like to know who has more rights to the property that both my wife and I still occupy but may not for much longer as we are going through a crisis in our marriage.

Back in the 1980s I took out an endowment mortgage and paid for all the premiums for the endowment policy and all the mortgage interest payments. A number of years later, I got a joint mortgage with my wife but again paid for the whole of the mortgage.

The mortgage is now paid off with a combination of the monthly mortgage payments, the proceeds from the endowment policy on maturity and an early retirement pension.

The marriage is under extreme pressure at the moment. All the kids are grown up and only one of the three remains at home. Should the marriage fail there may well be a messy business of who owns what and who is entitled to what and it crossed my mind – as far as rights go – who has more rights over the house? Is it a case of a 50/50 split because of the mortgage being in joint names? Or do I have more rights over the value of the house.

At 61 I’m struggling to get another job and won’t have my state pension for another five years or so and I am worried about my financial future including where I will be able to live.

A There are no hard and fast rules over who gets what following a divorce. How matrimonial assets – which are financial assets that you and your spouse built up during the period of your marriage – are split depends on the financial agreement that you and your spouse reach or, if you can’t agree, what a court decides for you.

Matrimonial assets include the family home, other property, pensions, savings, cash in the bank, vehicles, furniture, appliances, investments, valuables and businesses.

Whether the assets are jointly owned or owned in the sole name of either spouse has no bearing on how they are split on divorce and there is no automatic 50/50 division.

In brief, you’ll get whatever you and your wife agree you will get. If you don’t think that just the two of you will be able to come to an agreement, you might want to consider using the services of a mediator who can help you come to an agreement without taking sides. However, mediation is not relationship counselling which you might also want to consider as a way of relieving the pressure on your marriage so that divorce is not inevitable.

• Want expert help finding your new mortgage? Use our new online tool to search 1000s of deals from over 80 lenders with the Guardian Mortgage Service, powered by L&C.