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Your rights to the family home when you separate

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 article 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 home you share. Whether it is rented or owned, in both your names or just in one of your names, you may still have rights 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 that your partner leaves take advice from a family lawyer who will explore your circumstances. You should not just leave because your partner tells you that you should without first taking advice.

Joint 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 details of whether the person who remains should buy the others’ share, whether the house will be sold with the proceeds split or, perhaps, 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. It 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 persons’ 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 owner still has a right to stay in the 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 form a career to raise the children, for example.

Where a couple is not married and only one party ‘owns’ the 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 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.

How the property is owned

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 share. Tenants in unequal shares means there can be two or more owners but the amount they own is preset, eg 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 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. 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 mean 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 have an interest in 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 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 detailing 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 your shares, and the solicitors will have to account to you in the meantime for any interest that has accrued on the money.

I am about to buy a property with my partner how do I protect myself in case things don’t work?
Firstly consider how you will own the property (as joint tenants or tenants in common) and in what shares if tenants in common. Understand that if you are married, or plan to marry all of your matrimonial assets, including your house become joint assets and are therefore ‘up for grabs’ in any divorce settlement in the future. A prenuptial or post nuptial agreement would help you in these circumstances.

If you are planning to buy a property with your unmarried partner things are a little more complex. It could therefore be a good idea to enter into a Cohabitation or Living Together Agreement which sets out your intentions in case of a dispute in the future.

The main points to remember are:
• 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.

Speak to a specialist family lawyer to discuss your options, call 0800 321 3832 to book an initial free appointment.

All the advice in this article is on the basis that 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.

Ian Giddings
Divorce and family law solicitor

Blog written July 2019. Always contact a qualified family lawyer and take advice before acting on any of the information that you have read here.

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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