What happens to the family home can be one of the most contentious issues in a divorce or when dissolving a civil partnership. If a dispute arises, knowing the legal rights you have over the home can help you to understand what is and isn’t reasonable when agreeing a financial settlement
This blog will give you an idea of the rights you hold regarding a property within a marriage or civil partnership. However, please be aware that it focuses on spouses and civil partners only and does not apply to unmarried couples or cohabitees.
For ease, we use the terms ‘spouse’ and ‘divorce’, however the below can also be applied to civil partners and dissolution of a civil partnership.
What determines your rights?
One key question regarding your legal rights in the family home is whether your name is on the title of the property. The starting point for this is to obtain and review the Title Register held by His Majesty’s Land Registry, or your solicitor can do this for you.
However, if you and your spouse do not own the home, for example you may rent the property from a landlord, this will not apply. In these situations, it is best to seek legal advice so that you can discuss your individual circumstances.
If you are named on the title of the family home
Having your name on the title is the strongest protection of your rights in the property. Regardless of whether you have contributed any money into the property or not, if you are named on the title register you are deemed a legal owner and have ownership rights.
If both you and your spouse are named owners, it means that neither one of you can sell, transfer, or mortgage the property without the other’s consent.
If you do own the property jointly, you will hold it in one of two ways, either as:
- Joint tenants
- Tenants in common
Whichever way you hold the property, you will still have the ownership rights described above. However, if you hold the home as ‘joint tenants’ you may want to take additional steps in view of your divorce proceedings. If you were to pass away before your divorce is concluded, a joint tenancy means that the property would automatically pass to your spouse under the rule of survivorship. This may no longer be what you would wish and therefore you may choose to sever the joint tenancy to prevent this from happening.
Severing the joint tenancy converts the ownership to tenants in common. This would preserve your share of the property to pass on according to your wishes under your will in the event of your death, and the survivorship rule would no longer apply.
If you are not named on the title
If you are not named as a legal owner on the title, it doesn’t mean you have no rights to the family home.
Spouses gain ‘home rights’ over the matrimonial home when they marry. These allow you to stay in the home even if you don’t own it (i.e. you are not named on the title) until the marriage ends.
However, it is a good idea to register your home rights online with the Land Registry as soon as you can by applying for a Home Rights Notice. This will have the effect of registering a ‘charge’ on the property and – in a similar way to having your name on the title – it will stop your spouse from selling, transferring, or mortgaging the home whilst divorce proceedings are ongoing.
Resolving disputes over the family home
There are several ways in which disputes over the family home may be resolved. Ideally, agreements can be reached through discussion and negotiation, and form part of the overall financial settlement. For example, one spouse may agree to buy the other out of the home by borrowing a larger mortgage and transferring funds to the other party represent their share of equity.
Mediation can also help to reach agreements, with the assistance of a mediator. In most cases, mediation must be attempted before taking the matter to family court.
It is important to be aware that, even with your legal rights above, if the dispute over the family home cannot be resolved through negotiation or mediation, the family court will have overriding powers to dispose of the property.
When there are children (under the age of 18) involved in the proceedings, the court will look to their best interests when deciding how to resolve matters. Maintaining the family home with one spouse in occupation may fulfil this, but not in every case. The court also prioritises ensuring that both parties, and the children’s, housing needs are met.
Some of the orders a family court may make include:
- Ordering the sale of the home and splitting the proceeds between the spouses (not always equally). This is possible even if children live there and one or both spouses are against it. The court may decide it is necessary to achieve financial fairness, obtain a ‘clean break’, or to meet everybody’s housing needs.
- Ordering a delayed sale. This is where the home is kept until a set trigger point occurs and then the property must be sold. Some common trigger points are:
- when the youngest child turns 18
- when the youngest child finishes secondary school
- when no dependent child has lived in the home for a set period (usually 6-12 months)
- when the occupying spouse re-marries
- when the occupying spouse has cohabited with a new partner for a set period (such as 6 months)
The order may cover other triggers to sell the property as well, such as the bankruptcy of a spouse, or if both spouses agree to an earlier sale. The order can be made to allow them to live in the property (again until a set condition triggers), whilst the other spouse retains a financial interest in it.
Domestic abuse and your rights
If you have suffered domestic abuse from your spouse, it is important to ensure you are safe before taking any further action. Support can be found from organisations such as Women’s Aid and Men’s Advice Line.
It is also important to seek legal advice as soon as you are able. This can help you to understand your rights and avoid you being forced or intimidated into giving up those rights in relation to the home.
As a survivor of domestic abuse going through divorce proceedings, you will not be required to try mediation before the matter can be taken to family court. You may also receive other protections as a ‘vulnerable party’ in your proceedings.
Getting legal support
With any divorce proceedings, it is advantageous to obtain legal advice as early as possible. Even if your divorce is on friendly terms, having legal guidance before you take any action can ease the process and ensure your rights are protected.
At Ison Harrison, our specialist family law solicitors have helped countless people and families to move forward with their lives.
If you would like to speak to us about a divorce or dissolving a civil partnership, please don’t hesitate to get in touch.
