If your relationship has reached breaking point and one of you needs to move out, please do not worry about losing your right to the equity in the marital home. One of the most common myths in family law is that you will lose your legal rights to the marital home if you move out.
If you are the joint owner of the property then you will remain the joint owner, even if you decide to move out. The tenancy will be severed* so you own the property as tenants in common rather than joint tenants but you remain joint legal owner.
If, however, you do not own the house and it is in your partner’s sole name then again, don’t worry, we can help you to register what we call ‘matrimonial home rights’ on the property. Equally however, the reverse is true; if you are the sole owner then your partner can also register ‘matrimonial home rights’ on the property.
Either way, we can help you to protect your interests as part of the divorce process.
What are Matrimonial Home Rights?
The 'Matrimonial Home' is the home occupied by a couple who are married or in a civil partnership. If you do not own a share of the marital home then you can still protect your interest in the property by applying for 'Matrimonial Home Rights’. This is a statutory right to protect your interest in the matrimonial home.
Once the application is submitted, a caution is placed on the registered title of the property, which in effect is a notice that prevents it from being sold, transferred or mortgaged without your consent. Any attempt to deal with the property, will then be flagged up by the conveyancers or stopped by the land registry.
A notice is served to the owner of the property, and the protection will last as long as you are married or remain in a Civil Partnership. An agreement would be sought from the other party, or an application made to the Court to ensure that the Final Order (which legally ends your marriage, also known as "Decree Absolute" if proceedings were issued under the old divorce system) is not pronounced until a financial settlement is agreed between you or made by an order of the Court.
If you and your partner are already going through divorce proceedings, an application can still be made to the Court to extend the protection (if a Final Order/Decree Absolute has already been pronounced), but you have not yet agreed how the finances are to be split.
This is the only way you can protect your financial interest in the matrimonial home and we would recommended this to anyone who is separating and does not own an interest in the home.
One thing to note is that matrimonial home rights do not extend to other properties owned by your spouse or civil partner, such as holiday homes or rental properties, and these properties would have to be dealt with within the divorce or civil partnership dissolution proceedings. Restrictions can still be placed on these by way of a unilateral notice, or by a restriction being placed on the title to the properties (which would be required by the Court). We can guide you through this.
If you need any advice on matrimonial property or have any questions about starting divorce proceedings, please get in touch with our award winning Family Law team. All appointments can now be done over the phone, by video chat or in person at your convenience.
*What is meant by 'severing the tenancy'?
If you own the property as ‘joint tenants’ this means that if either you or your spouse were to die prior to the resolution of the marital finances and the divorce, then the survivor would automatically own 100% of the property through the right of survivorship. You may wish to “sever the joint tenancy” and become owners of the property as “tenants in common”. By owning the property as “tenants in common”, this means that both you and your spouse would own a defined share in the property which would be capable of being inherited in accordance with the terms of a Will or rules of intestacy. Your Will would also need updating to set out who you wish to inherit your share of the property if owned as tenants in common.