For the majority of couples, the family home is the most valuable asset they own. Following the breakdown of a relationship many people naturally worry about where they will live and what will happen to the property.

Here we will discuss two of the most common scenarios we encounter.

I am married but my partner owned the property before we met and I am not on the mortgage.

A property that has been lived in as the marital home is usually treated as a matrimonial asset regardless of whose name is on the mortgage however that is not always the case.

The Courts consider a variety of factors as set out in Section 25 of the Matrimonial Causes Act 1973 when determining how property should be redistributed between spouses.

If the house is solely owned by your spouse you can obtain a Matrimonial Home Rights Notice, which is effectively a charge over the property, protecting the non-owning spouses right to remain living in the house whilst finalising any financial settlement. An application is made directly to the Land Registry and no fee is payable. If the application is successful your spouse will be notified in writing and the notice will be attached to the title deeds.

The benefits of obtaining a Home Rights notice are that your spouse is prevented from selling the property without your knowledge and ensures any potential buyers are aware of your right to occupy the property. It does not however mean that you automatically have an interest in the property and does not mean you can live there forever.

A Home Rights notice usually comes to an end by:

  • Divorce or annulment of the marriage;
  • Dissolution or nullity of the civil partnership;
  • Death of your spouse or civil partner;
  • By Court order;
  • Or by release in writing by the person who registered the notice.

The house is in joint names, my ex wants to sell but I want to stay here, what are my rights?

The Courts have the power to make an Order for sale. However, they will not usually force a sale if the party that wishes to remain in the property can remortgage or otherwise buy out their spouses’ interest.

An order can be made that the jointly owned property is transferred into a sole name however if there is a mortgage on the property, the mortgage lender would need to be involved in the process and usually you would need to obtain their consent to release one of the parties.

Where the party that wishes to stay cannot raise the capital or obtain a mortgage in their sole name and the equity in the jointly owned property is required to meet both parties housing needs the order for sale will be made and the proceeds divided as determined by the Court.

Dividing matrimonial assets can be complicated and contentious, we would always advise you to seek independent legal advice before making any decisions.

We can help

Contact Emma and the team at Ringrose Law on 01522 561020 or email emma.darley@ringroselaw.co.uk

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