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Who gets to stay in the house during separation?

By , on Thursday September 1, 2022 at 9:30 am

As family lawyers, we are often asked ‘Can my husband ask me to leave our house?’ and ‘What right do I have to stay in the family home when we split?’ This blog attempts to provide answers to these questions and provide advice on the steps you might take.

Separating can be difficult enough emotionally before considering the arrangements which need to be made over the family home. Whether it is rented or owned, in both your names or just in one of your names, you may still have the right to live and stay there.

There is often either an argument over it being ‘my’ house or that it is assumed one party should stay to look after the children and the other should be expected to leave. If you are not sure whether you should leave or whether you can ask your partner to leave, take advice from a family lawyer who will explore your circumstances and guide you through your separation rights.

You should not just leave because your partner tells you that you should without first taking advice.

Knowing your legal rights when separating can empower you to make better decisions and help to avoid unnecessary conflict. You can read on for more information about how house entitlement during and after separation works or to take advantage of a free 30-minute consultation with one of our expert local family law solicitors by calling 0800 321 3832 or completing our quick online form.

Joint home ownership and the law

Where a house is owned or rented in both names, there is an equal right in law that both are entitled to be in the home.

Any financial arrangements on divorce can include arrangements for issues such as:

  • Whether the person who remains should buy the others’ share
  • Whether the house will be sold with the proceeds split
  • If the person with whom the children reside should be allowed to stay in the property until the children leave home, at which point it will be sold and the profits divided

If the family home is rented in joint names, one party will often simply wish the others’ name to be removed from the rental agreement, which is relatively easily done. A Notice to Quit is normally prepared for the landlord in these circumstances.

This does, of course, though mean the sole burden for all related costs is down to one person. Any rent arrears will need to be sorted and this can be negotiated as part of the sorting of financial arrangements.

In the event of one person not being allowed to take their name off a rental property, an application can be made to the court for the removal of their name.

Access to marital home during separation

Where the home is in one person’s name only, the other may still be entitled to stay, even if the owner objects. If the couple are married, the spouse not named as the owner still has a right to stay in the marital home and ‘occupy’ it.

They can register their Matrimonial Home Rights with the Land Registry. That will protect their interest in the home until the divorce is concluded. By that time, what happens to the property will have been decided as part of the negotiations. Home Rights protect a party from having to leave a property where they have not been able to contribute to the property financially because they have taken time out from a career to raise the children, for example.

Where a couple is not married and only one party ‘owns’ the marital home or is named on the tenancy, the other may still have a right to stay there in the short term and/or may also have a right to claim against the equity in the property because they have acquired an interest in it.

Again, it is important to get specialist advice promptly and before you leave, as in fact, you may be able to stay.

The law and property ownership

If it is owned, exactly how the property is owned is really important. Ultimately, it all boils down to whether the couple bought the house as Joint Tenants or Tenants in Common.

These are common terms that relate to how two (or more) people can own a property. You can own a property as:

  • Joint Tenants in equal shares;
  • Tenants in Common in equal shares; or
  • Tenants in Common in unequal shares.

Joint tenants with equal shares is the most common set-up for a married couple with a mortgage. The name says it all really; they own equal shares in the property and so 50/50 is the starting point for any negotiation.

Tenants in Common in equal shares is similar, though there can be more than two of them with equal shares. Tenants in unequal shares means there can be two or more owners but the amount they own is pre-set, e.g. 20%:80% etc. This may reflect one party putting more money into the property when they initially purchased it.

Some couples will opt for a Deed of Trust on buying a property if one or the other invests more and wants to protect that investment. This can set out in detail how you will own the property, what shares you own the property in and what will happen with your share if you separate.

It is worth noting that just because a couple has equal shares it does not mean that the final negotiation of splitting assets means both will get an equal share of any profits. It is simply part of the pot of assets to be divided and discussed, which will also include bank balances, investments, savings and pensions.

Frequently asked questions about marital home rights

These frequently asked questions and the answers may help with your particular circumstance and your separation rights. It is important however to take advice as every situation is slightly different.

I want to protect my right to occupy the family home – how can I do that?

If you are married, and your spouse owns the family home in their sole name, you may be entitled to a share in the equity even though your name is not “on the deeds” or registered at the Land Registry. At the very least, you will have matrimonial home rights in the property, which means that you are allowed to occupy the property without being disturbed.

If your marriage is breaking down, you may need to register these rights at the Land Registry, and it is advisable to seek legal advice at an early stage to ensure that your interests are properly protected.

If you are not married to your partner, and you do not own the property in joint names, you may be concerned about whether you can stay there if your relationship breaks down. You should take legal advice in these circumstances.

Matrimonial home rights will not be open to you, but you may still be able to protect yourself by registering a notice or restriction with the Land Registry against the property, depending on the circumstances. Contact Woolley & Co to establish your rights in this situation.

What if I am concerned that my spouse or partner may be trying to sell a property without my consent?

If the property is registered in both of your names, you should contact the conveyancing solicitor immediately, and explain your situation. The conveyancer should consult you before proceeding with the transaction and ensure that they obtain your signature on the vital documents, as well as your partner’s.

If you are worried that your spouse or partner, whether you are married or not, may be trying to sell the property in which you live or has an interest in doing so, you should speak to a specialist family lawyer as a matter of urgency.

This is especially urgent if you know or suspect that the property is registered in your partner’s sole name, or in the name of a third party, such as a company or trust that your partner may be involved with. You may have found out that they have marketed the property with an estate agent or even that an exchange is looming. You need to move quickly! The property in this case may not necessarily be your family home – it could be an investment property or holiday home.

In this situation, matrimonial home rights may not be enough to protect from the property being sold or transferred, and this won’t be an option for you anyway if you are not married. To prevent your partner from dealing with the property you may need a restriction, which will be entered with the Land Registry. This will ensure that your written consent must be obtained before your spouse or anyone else sells the property or otherwise tries to dispose of it.

Usually, the registered owner of the property must give their written consent to a restriction being entered. If this is unlikely to be forthcoming, you may need to make an emergency application to the Family Courts for an order that the restriction is entered at the Land Registry without your partner’s consent.

Our family lawyers are experienced in dealing with these issues and will be happy to guide you through the process.

We’ve agreed to sell – how do I cancel my matrimonial home rights, or remove a notice or restriction from the Land Register?

Once you have reached an agreement with your spouse or partner that the property is to be sold, any matrimonial home rights, restrictions or notices will need to be removed from the Land Register to allow the transaction to proceed. This is very simple and your lawyer can attend to this by sending off the necessary forms.

We have agreed that the sale should go through, but we have not reached a formal agreement regarding our finances yet, is it OK to let the sale proceed?

You might decide that it is advantageous for you for the sale to go ahead as you have been offered a good price for the property. In an unpredictable market, you may not want to pass up a good opportunity to maximise your potential share in the equity, although you should exercise caution here and ensure you are making an informed decision.

It is possible to ask your conveyancing solicitor, or Woolley & Co, as appropriate, to hold the proceeds of the sale, after any mortgages have been redeemed and all the estate agents’ and conveyancing fees, and other charges, such as search fees, have been paid. The equity can be held in a secure solicitors’ bank account to be paid out when you and your partner have agreed on your shares, and the solicitors will have to account to you in the meantime for any interest that has accrued on the money.

Can my wife or husband kick me out of the house?

No, your spouse cannot force you to leave the family home if you do not want to. Even if the house is in your spouse’s name, they cannot simply make you leave as you normally have the right to stay in the property.

If your husband or wife has kicked you out of the house, e.g. by demanding you leave or changing the locks while you were out, you should seek immediate legal advice.

Can a separated spouse enter the home?

Access to the marital home during separation can be a contentious issue. Ordinarily, a separated spouse will still have the right to enter the marital home. However, if there have been incidents of domestic abuse, it may be possible to restrict this right by applying for a court injunction to prevent a spouse or partner from entering the family home.

You should take specialist advice on your house entitlement after separation to make sure you are treated fairly.

What are my rights if I leave the marital home?

Leaving the family home does not affect your rights, either with regard to a financial settlement or access to the property. If you have left the marital home and your spouse is attempting to prevent you from re-entering, you can apply to a court to enable access.

For specific advice on your separation rights, please speak to a member of our team as soon as possible to avoid unnecessary stress and confusion.

How can I get my husband or wife out of the house if they refuse to leave?

You can certainly ask your spouse to leave the house, but you cannot compel them to do so. This is except in the case of domestic abuse, in which case an occupation order would be needed to determine who can remain living in the property.

Even if the house is in your name, you will not be able to make your spouse leave as they will normally have the right to stay in the property.

Kicking your husband or wife out of the house against their wishes or without their knowledge could mean that you are liable to face legal action.

Can I stay in my marital home with my child?

If you are not able to come to an agreement over where your children will live following divorce, there is no automatic ruling which determines what arrangements should be made.

If the court becomes involved, the decision over whether you will be able to remain in the marital home with them will be based on the individual circumstances and what decision is deemed to be in the best interests of the children.

Factors such as the following will be considered:

  • The children’s wishes (if they can articulate them)
  • The children’s physical, emotional and educational needs
  • How capable both parents are of meeting their children’s needs
  • Who has had primary responsibility for the children to date
  • Each parent’s ability to care for the child

The main points to remember when you separate

  • If you are registered as a joint owner of a property at the Land Register, you should be protected but it still pays to stay informed and to know what your partner’s intentions are.
  • If you are married, you should be able to register matrimonial home rights.
  • If you are not married there may be other options open to you to protect your interest in the property.
  • If you suspect your spouse or partner intends to sell the property imminently, you should speak to a specialist family solicitor immediately.

Talk to Woolley & Co Solicitors about your divorce

At Woolley & Co Solicitors, our expert divorce lawyers can offer specialist legal advice to guide you through a quick and stress-free divorce process.

To take advantage of your free 30-minute consultation with an expert local family law solicitor, call 0800 321 3832 or complete our quick online form.

Ian Giddings
Divorce and family law solicitor

The advice in this blog assumes your property is registered on the Land Register of England and Wales. Although registration is now compulsory, there are still properties that are unregistered. If this applies to you, you may need further advice from a property lawyer. In the case of foreign properties, there are other ways to do this and you may need advice from lawyers in the relevant country.

Blog Author - Ian Giddings

Ian GiddingsIan Giddings

Ian Giddings is a family solicitor with Woolley & Co, based in North Warwickshire. Ian offers a range of services including advice on divorce, separation, financial settlements and disputes regarding children.


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