Property & Divorce

Property and Divorce

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.

If you are not sure whether you should leave or whether you can ask that your partner leaves you should not just leave because your partner tells you that you should without first taking advice.

Who has the rights to the family home?

Where a house is owned or rented in both names, then 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 or whether the house will be sold with the proceeds split.

Where the home is in one persons’ name only, the other person may still be entitled to stay, even if the owner objects. If the couple are married, the spouse not named as owner may still have a right to stay in the home and ‘occupy’ it. They can register their Home Rights with the Land Registry. That will protect their interest in the home until the divorce is concluded.

If you are unmarried 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 the property because they have acquired an interest in it.

How can I protect my right to occupy the family home?

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  home rights in the property, which means that you may be allowed to occupy the property. 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. In this case, you may still be able to protect yourself by registering your interest with the Land Registry depending on the circumstances.

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What if my partner tries to sell the property without my consent?

If the property is registered in both of your names the property cannot be sold without your consent. However if 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 should seek urgent legal advice. The property in this case may not necessarily be your family home – it could be an investment property or holiday home.

In this situation,  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 and you may need to make an emergency application to the court for an order to prevent the property being sold without your partner’s consent.

I am about to buy a property with my partner

If you’re considering to purchase a property and would like to protect your interests in case things don’t work, there are a number of ways in which this can be achieved.

Firstly, consider how you will own the property (as joint tenants or tenants in common) and in what shares if tenants in common. If you are married, or plan to marry all of your matrimonial assets including property will be included in any divorce settlement in the future.

A prenuptial or postnuptial 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 Agreement which sets out your intentions in case of a dispute in the future.

Here at Child Law Partnership, our expert family lawyers can assist you with drafting these important legal documents that will essentially safeguard your financial interests. If you would like further information with regards to how we can help you, please contact our experienced team today.

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