Legal Mythbusting : The Family Home

The family home is the central hub of any family. However, upon separation and divorce the legal position in respect of parties’ rights and responsibilities is often bogged down in legal myths. Many are conscious of the need to protect their interest in the property. This article deals with the matrimonial home following marital/civil partnership breakdown and divorce.

Firstly, many people think that if they move out of the matrimonial home, then they weaken their financial position, losing all interest, rights and claim in the property. This is wrong.

Moving out of the matrimonial home does not change the legal ownership of the property. If it is held in joint names then you remain a joint owner of the property, regardless of whether you continue to reside there. If a mortgage is in joint names, then you continue (with your spouse) to be jointly and severally liable for payments and obligations under the mortgage. However, as a joint owner you also have the right (subject to there being no injunctions in place to the contrary or any tenancies etc which restrict your ability in this regard) to enter the property. If you have moved out of the property, in the interest of preventing any difficulties it is worth agreeing any times that you are to attend the property with your spouse/partner.

In terms of your financial position, if you are claiming that you need to remain in the family home in order to meet your housing needs (for example if you have young children or if the property is adapted to meet any disabilities etc) then you should endeavour to stay in the family home. However, each case will turn on its facts and remaining in the matrimonial home during proceedings is not necessarily a way of ensuring that you can remain in the same house moving forward. In each case, it is important to determine each party’s housing needs and how these would best be met from the financial resources available. If you have any concerns about this then you should take legal advice.

However, if you do not wish to remain in the family home short term and do not want to retain it long terms, then moving out of the property does not mean that you are relinquishing your entitlement to any of the net equity in the property. The matrimonial home is an asset that is taken into consideration within financial remedy proceedings (including all capital, liabilities, income and pensions held by each party). This means that the value of the matrimonial home will be looked at within financial remedy proceedings upon divorce regardless of the living situation.

If the property is held in the sole name of your spouse, they may indicate to you upon separation that you should vacate the property. In circumstances where you are married, you have a right to reside in the family home prior to Decree Absolute (save for in circumstances where this is counter-acted by way of a court injunction) under the Family Law Act 1996. This can be protected by registering a Matrimonial Home Right at the Land Registry. This does not give any ownership right to the party claiming the home right, but does protect the personal right not to be evicted or excluded from the property. This usually only continues throughout the marriage, although it is possible in restricted circumstances to apply for such a right to continue after Decree Absolute (although the timing of this request is key).

Matrimonial Home Rights also prevent the family home from being sold without your knowledge (as most purchasers are unwilling to purchase a property which is subject to such a matrimonial home right and will require this to be discharged upon completion). Whilst you may choose to move out of the matrimonial home for your own reasons, a spouse who is the sole owner of the property cannot “evict” their spouse in the same way a Landlord would to a Tenant.

A Matrimonial Home Right can only be registered against the matrimonial home in which the family resides and any additional properties cannot have Matrimonial Home Rights registered against them (for example where a spouse owns a property portfolio). However, it is possible to register a restriction or a notice at the Land Registry in order to try and prevent properties held in your spouse’s sole name from being sold or dealt with. In the event that this is not successful and a party is concerned about a dissipation of assets (including the sale of properties at a low value etc) then a freezing injunction can be sought to limit or prevent a party from dealing with assets until conclusion of any financial remedy/divorce proceedings.

Such notices or home rights are not required if you are a joint owner of the property, as the property will not be able to be sold legitimately without your knowledge and consent in any event.

In cases of cohabitation, the legal position is very different to that upon separation or divorce when parties are married or in civil partnerships. Cohabitants cannot apply for matrimonial home rights and in some cases they might not be registered as a legal owner of the property. As such, any interest they have in a property will need to be quantified and protected using different methods. The legislation covering these situations is the Trusts of Land and Appointment of Trustees Act 1996. Parties may also request provision for children under Schedule 1 of the Children Act 1989.

In the event of domestic violence, emergency injunctions can provide spouses/cohabitants (and any children of the family) with protection. This can include an occupation order to exclude a perpetrator of domestic violence from the property (or from parts of the property). This can be the case even where the property is held in the perpetrator’s sole name. However, there will be a number of factors to be taken into consideration by the court (including the housing and other financial resources available to both parties etc) when determining the outcome of such an application and much of that will depend upon the facts of each individual situation.

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