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Family Law Blog

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Married couples, divorce and the family home

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Does it matter that the family home is not jointly owned?.

When I take a call from someone who is separating or getting a divorce one of the first concerns they have is does it matter that the family home is not jointly owned? Women in particular, who may not have had much involvement in the marital finances, can feel quite vulnerable and worried that they will be told they can no longer live there.

In the majority of cases, the family marital home is owned by both parties (ie in their joint names). If this is the case the individuals concerned seem easily to realise that they have joint claims on the property. 

But for a married couple, as opposed to an unmarried couple, there are certain rights which apply regardless of whether the family home is owned by one, or both of them.

There could be very good reasons why the family home is registered in their sole name of one of the parties. The property may well have been purchased prior to the marriage but then becomes the family home. It could be that one of the parties already owned a property and they were unable to apply for a further mortgage. Of course, it could be that when the couple decided to buy a home together one of the parties had a poor credit history and was therefore unable to secure mortgage lending.

The rights of non-owning spouses

Whatever the reason for the marital home being owned by one of the parties, rather than both, it will not preclude the non-owning party from having an interest in the property or a right to occupy the property in the event of them separating or getting a divorce.

When a couple are married and the family home is owned by one of the parties, the non-owning spouse will have the right not to be evicted if they are in occupation. 

Advice to non-owning spouses

The first piece of advice that I give to a client in this situation is to register what are called their “Matrimonial Home Rights” with the Land Registry. This is a very simple exercise and not a costly one. The home rights notice protects the statutory right of occupation and the notice is entered on the official Land Registry documents relating to that particular property. In simple terms this legal notice means your ex cannot evict you from the property or sell it whilst you are in occupation.

The notice provides protection and will remain registered until it is removed which is usually when a financial settlement has been reached, which may or may not conclude with the sale of the property. 

By registering a home rights notice, the effect will usually be to ensure that both parties then work towards reaching a financial settlement which will include the family home, often the main asset in any divorce. 

The fact that the property is owned by one party will not therefore effect the other spouse’s right to occupy the property or in any way suggest that they do not have a beneficial interest in the property. Once the home rights notice is registered, it is prudent to start the financial negotiations promptly with a view to reaching an agreement in relation to the family home and all other marital finances.

Claudette Jaggard-Inglis
Divorce & family lawyer

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