This is the second of three blogs about property rights when couples separate.
Following the blog from my colleague, Nia Jameson, which dealt with legal rights regarding a jointly owned property, I look at issues when a property is registered in the sole name of one spouse or civil partnership.
I am often asked about the legal rights of the spouse or civil partner in whose name the property is not registered. On the face of it, he or she has no legal ownership of such a property and may have no financial stake or equity in it. However, this is a complex area of family law, and the Courts have wide ranging powers to ensure a fair outcome. Here are three of the key factors to consider:
Protecting your Rights to live in the Marital Home
As the non-owning spouse or civil partner it is possible to register what are known as “Home Rights” under the Family Law Act 1996 with HM Land Registry. Once registered, this would have the effect of upholding the right of the non-owning spouse or civil partner to remain living in the property until the divorce has been finalised. This would also limit the ability of the property owner to sell or transfer the property without the other’s knowledge.
It is possible to extend the Matrimonial Home Rights (for example if there is an ongoing dispute as to the settlement of the overall financial settlement) by an order of the court, known as a “continuation order” beyond the formal end of the marriage by Decree Absolute.
I must stress that this is the position in relation to married couples or couples who are in a civil partnership. It is not possible to register “Home Rights” if the owning spouse or civil partner owns the property jointly with a third party, for example a family member or friend.
How the Courts will deal with the Property on Divorce
Generally speaking, the marital home will almost always be considered as “matrimonial property,” whether or not the property is owned in the joint names of the couple or in the sole name of one of them.
Whilst consideration will need to be given to all the circumstances, generally speaking, the starting point for division of matrimonial property is an equal division. The primary consideration of the court, however, is “need”. It does not necessarily follow that the non-owning spouse will have to vacate the property and indeed in certain situations it may well be that the home could be transferred into their name or an order made that would allow them to remain in the home (to the exclusion of the owning spouse) until for example the children finish their education.
Current and future housing needs – and how those needs will be funded – form a crucial part of discussions and negotiations and ultimately any courts determination. Even after a short marriage, the question will be “Can either of you secure mortgage borrowing required to maintain the family home, or, will the property have to be sold and the equity divided to ensure that housing needs can be met?”
Protection of your wellbeing and that of the children
Even if you do not legally own the property, if you and/or any children who live in the property are at risk of harm – either psychological or physical – should your spouse or civil partner remain living at the property, or by having access to the property, it is possible to apply to the court for an Occupation Order. If successful and an Occupation Order is made in your favour, then the other spouse will be excluded from the property for a specified period of time. The Court can also order that the excluded spouse shall continue to make mortgage payments should this be necessary.
If you are separating from your spouse or civil partner, and the family home, is not in your joint names, I would urge you to take expert legal advice from a family lawyer at the earliest opportunity.
My colleague, Wayne Lynn shall be looking at the issue of property rights of unmarried cohabitees in the third of this series of blogs.
If you have questions about any aspect of divorce, including spousal maintenance, you can email Christian at Christian.Butler@SilkFamilyLaw.co.uk Follow Silk Family Law on Twitter on @Silkfamilylaw