Remortgaging After Separation or Divorce

How the family home is refinanced when a relationship ends — and how the legal timing actually works.

When a marriage, civil partnership or cohabiting relationship ends, the family home usually has to be dealt with one of three ways: sold, transferred to one party (usually with a buyout and remortgage), or retained jointly for a period. The middle option — one party keeps the home, refinances it into their sole name and pays the other their share — is the most common, and it is where family law and conveyancing meet.

This page explains the conveyancing side and how it interlocks with the family law process. It assumes the family law questions themselves — what a fair division is, what a court would order — are being advised on separately, whether by this firm or another.

The order usually comes first

In divorce, judicial separation and civil partnership dissolution, the court can make property adjustment orders directing that the home be transferred between the parties. Separating couples who settle by agreement typically have their terms made a rule of court or embodied in a deed of separation. In each case, the transfer of the home is carried out on foot of that framework — so the conveyancing usually follows the family law outcome, not the other way around.

That said, the financing has to be tested early. There is no point agreeing a settlement in which one party retains the home if no lender will approve them for the required mortgage. Approval in principle for the retaining party is best obtained before terms are finalised, so the settlement is built on a mortgage that actually exists.

What the lender requires

The retaining party applies for a mortgage in their sole name, underwritten on their sole income — with maintenance receivable sometimes counting towards affordability and maintenance payable counting against it, depending on the lender's policy. The lender will want to see the separation agreement or court order dealing with the property, and its loan offer will be conditioned on the transfer completing.

The departing party is released from the old mortgage only when it is redeemed. Until then, they remain liable to the bank whatever the parties have agreed between themselves — a point every departing spouse should have explained to them clearly.

Completing the transfer and remortgage together

On completion day, several things happen simultaneously: the new sole-name loan draws down, the old joint mortgage is redeemed, the buyout payment (if any) is made to the departing party, and the deed of transfer vesting the home in the retaining party is completed. The deed is then registered along with the new charge.

Transfers between spouses, and transfers made on foot of family law orders, generally benefit from stamp duty exemptions and specific capital tax treatments — but the tax position, including for cohabitants who do not have spousal exemptions, is for your accountant or Revenue, and it should be confirmed before terms are signed.

Cohabitants: the harder version

Unmarried co-owners have no divorce framework. Their rights come from the title itself, any co-ownership agreement, contributions, and — for qualifying cohabitants — the redress scheme under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The buyout mechanics are the same transfer-of-equity transaction, but without spousal stamp duty and tax exemptions, and without a court's ability to simply order the transfer except within that redress framework. Independent advice on both sides is essential.

Practical sequencing

The sequence that works: agree terms in principle, test mortgage approval for the retaining party, finalise the family law terms, obtain the loan offer, then run the conveyancing — title, deed, declarations, redemption and drawdown — so completion lands as soon as possible after the order or ruled settlement. Where the order sets a deadline for the transfer or a default sale in lieu, diarise it from day one: missing a court deadline converts a refinance into an enforcement problem.

Frequently asked questions

Can I remortgage before the divorce is finalised?

The transfer of the home usually happens on foot of the settlement or court order, so the remortgage typically completes alongside or after the family law outcome. Mortgage approval, however, should be sought much earlier so the settlement is realistic.

Does my ex have to consent to the remortgage?

While they remain a joint owner or the home is a family home in which they hold rights, yes — their signature or statutory consent is needed, or a court order dispensing with it. The transfer and remortgage are structured so that consent and payment happen together.

Will maintenance count towards my mortgage application?

Some lenders count maintenance receivable, usually where it is court-ordered and has a payment history; maintenance payable is deducted from affordability. Policies differ between lenders, which is where a broker earns their fee.

Am I still liable if my name stays on the old mortgage?

Yes. Liability to the bank ends only when the loan is redeemed or the bank formally releases you. A separation agreement between the parties does not bind the lender.

Is stamp duty payable on the transfer to me?

Transfers between spouses and transfers under family law orders are generally exempt. Cohabitants outside those reliefs may face stamp duty on the share transferring. Confirm the tax position with your accountant or Revenue — we do not advise on tax.

Talk to a remortgage solicitor

Mary Molloy Solicitors acts for homeowners and property owners across Ireland on remortgages, switches, top-ups and transfers of equity. All enquiries are handled through our Dublin office.

This page contains general information about Irish law and practice. It is not legal advice, it may not reflect your circumstances, and reading it does not create a solicitor–client relationship with Mary Molloy Solicitors. We do not advise on taxation; please speak to your accountant or Revenue. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.