Divorce and what happens when you own a home

It is often the case that the family home is the main asset of married couples and civil partners. If the house is owned in the sole name of one spouse, where does that leave the other spouse if the marriage or partnership breaks down?

Married couples and civil partners have financial claims against one another and these apply to both joint assets and also assets held in each sole name.

This means that the spouse who is not named on the ownership register of the house still has rights over the property.

These rights include the entitlement to stay in the house undisturbed and also a potential share of any equity in the property.

The owning spouse cannot evict the other spouse without a court order, restrict their access to the property or change the locks.

Even if the other spouse chooses to move out and the owning spouse remains in the house, the rights stay in place.

It is often important to ensure these rights are protected so that the owning spouse cannot deal with the property (by selling, transferring or remortgaging), without the other spouse’s knowledge or consent. This can be done by way of an application to the Land Registry to register matrimonial home rights.

The application for matrimonial home rights puts a notice on the title deeds that there is an unresolved claim on the property and the solicitor for any potential buyer would be made aware of this.

In effect, this prevents the owning spouse from dealing with the property until such time as the notice is removed or the written consent of the other spouse is obtained.

Once the notice is placed on the title deeds, the owning spouse and any mortgage lender are notified.

Once the matrimonial home rights notice is in place the property is then protected whilst negotiations take place to deal with the family finances as a whole alongside the divorce or dissolution proceedings.

If an arrangement cannot be reached by consent then the parties can attend mediation and consider an application to the court if necessary.

Once a final settlement has been agreed in respect to the finances, including arrangements for the former family home, the court can make an order to legally record this. An application can then be made to the Land Registry for the removal of the matrimonial home rights notice.

If an application is not made to remove the notice, the matrimonial home rights notice will usually come to an end once the marriage or civil partnership is dissolved.

If an agreement has not been reached in respect to the finances it is usually the case that the application to finalise the divorce or dissolution is postponed. If the marriage is dissolved before the finances have been sorted, further relief can be sorted to prevent the owning spouse from dealing with the property either by way of a formal restriction on the title deeds or a freezing order from the courts.