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Divorce and family law explained 

Your rights to stay in your 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. Practically this may not work, but the party leaving the home has security in the knowledge that the home is part theirs and so they will still have that interest in the home. The right to the home will remain until the ownership of the home or the tenancy is changed into just one persons’ name.

For couples who own their home, financial arrangements on separation or divorce can include whether the person who remains in the home should ‘buy’ the other person’s share, whether the house should be sold and the sale proceeds divided or perhaps whether the person remaining in the home, where children are involved, should be able to keep the home and buy the other’s share when the children are grown up. An agreement or order can be prepared by a family lawyer to protect your interests whether you are the person staying in the home or the one leaving it and can explain all of the options which may be available in your particular case to you.

Renting couples usually wish to have one parties’ name removed from the tenancy when they leave so the other is solely responsible for the rent. It is very important that this is done by consent as technically if one party gives the landlord ‘Notice to Quit’ to end the tenancy they do this on behalf of both parties and the landlord can assume to end the tenancy. Where there are arrears the landlord will likely to want to know who will clear these before the tenancy is changed to one name, but this can be discussed as part of the financial arrangements between the couple.

House in just one name

Where the home is in one persons’ name only, the other may still be entitled to stay there, even if the other person says you have no right to live in ‘my’ house.

If the couple are married, then the spouse who is not named as an owner still has a right to stay in the home and to ‘occupy’ it and can register their Matrimonial Home Rights with the Land Registry. That will protect their interest in the home until the divorce is concluded, by which time there should have been discussion and resolution over financial arrangements, including the home. This party may be able to have the home transferred to them in a divorce settlement or have a lump sum payment from the value of the equity in the home, depending on the circumstances of their individual life.

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. This can have occurred in various circumstances - it is important to get specialist advice promptly and before you leave as in fact you may be able to stay.

As with any legal issue it is important to take professional advice before making any decisions. Call Woolley & Co on 0800 321 3832 and speak to one of our family law specialists.

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