Protecting the Family Home through Divorce

Written by admin

September 30, 2021

Hands holding a home protection through a divorce

The matrimonial home is often the biggest asset in dispute between divorcing couples. It is therefore very important to consider your legal rights at an early stage.

Matrimonial home is sole name of one party 

Where the matrimonial home is owned in one party’s sole name, it is possible for the other party to register a Matrimonial Home Rights Notice against the property, to note their interest. This protects a spouses rights to occupy the property pending divorce. If the spouse who solely owns the property tries to dispose of the family home without notice, the buyer will be alerted that there is a Notice registered against the title deeds and the buyer will want the notice removed before competing on the purchase. The spouse who has registered the Notice will only consent if a settlement has been agreed.   

Matrimonial home in both parties’ joint names

Where the matrimonial home is owned jointly, it can be owned in one of two ways: –

As joint tenants

This is where both parties own the entire property jointly. In the event that one of them passes away, the Right of Survivorship applies and the survivor inherits the property absolutely, irrespective of any Will, or the Rules of Intestacy if there is no Will. 

As tenants in common

This is where the parties have separate, identifiable shares in the property. In the event of one party’s death, the deceased party’s share would then pass in accordance with their Will or the Rules of Intestacy if there is no Will. It is important to note that under the Rules of Intestacy, spouses have an automatic right of inheritance up until Decree Absolute (the legal document that ends a marriage). 

It is possible to convert a joint tenancy into tenants in common by way of serving a Notice of Severance, so that you can then make a Will leaving your share in your matrimonial home in accordance with your wishes in the event of your death. With that said, until there is a Court Order dismissing both parties’ financial claims against one another both in life and death, spouses and former spouses are able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for provision from their spouse’s/former spouse’s Estate. 

A house owned in joint names means that one spouse cannot sell the house without the consent of the other because both will have to instruct the estate agent on sale and both will be required to sign the contract and the Deed transferring ownership to a new buyer. 

This also applies if one spouse tries to dispose of their interest in the property to another. It cannot be done without the consent of both co-owners.

Can a co-owning spouse borrow against the house? 

No, not without the consent of both owners.

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