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Home rights: divorce and property owned before marriage

Home is where the heart is, but what happens to the most valuable asset most couples own when the marriage breaks down? It is certainly important that you know your rights in respect of your property before you make any decisions.

Matrimonial Home Rights notices – what are they?

If you are married (or in a civil partnership) it is possible to obtain a ‘charge’ over a property your spouse owns which gives you a right to occupy the property. This is known as a Matrimonial Homes Rights notice.

This notice will not mean that you can live at the property indefinitely, but it will enable you to remain living there whilst you finalise any financial settlement. The notice alerts any potential buyers of your right to occupy the property and essentially prevents your spouse from selling the property from under you. The notice does not mean that you will automatically have an interest in the property. This is something the court will decide, if you can’t agree between you.

To obtain a Matrimonial Homes Rights notice you need to make an application to the Land Registry on form HR1. There is no fee to pay. If successful, the notice will be placed on the title deeds to the property and confirmation sent to your spouse.

You can only have one Matrimonial Homes Right notice against a property at any one time. If your spouse owns multiple houses and you are concerned that they will sell these prior to your financial settlement it is advisable to seek advice from a specialist family solicitor.

Is a house owned before marriage marital property?

Everything will depend on your individual circumstances.

If a house owned by one person prior to the marriage is lived in as your marital home, this will usually be treated as a matrimonial asset, although that does not necessarily mean it would be divided equally. If a house owned prior to the marriage by one person is not the marital home, it may be considered non-matrimonial property and treated different. However non-matrimonial assets e.g. assets owned before the marriage (such as a house) can be considered by the court if there is simply not enough money for you to rehouse otherwise. You would need to demonstrate to the court that your needs cannot be met without funds from the sale of this property.

Unfortunately there is no straightforward calculation that can be done and any award will be at the court’s discretion, if you can’t agree between you.

Can I be forced to sell a jointly owned house?

Yes. The court has the power to make an ‘order for sale’ over properties if one spouse wants to stay in the property but the other does not agree. The court will only do so if it is not possible for one spouse to buy the other out and the equity in the property is needed in order to meet both parties’ housing needs.

My name is not on the mortgage what are my rights?

The family home is given special status in any matrimonial court proceedings. Just because you are not named on the title deeds or the mortgage does not mean you are not entitled to any share in its value.

You can also still apply for a Matrimonial Homes Right notice even if you are not on the mortgage. If it is your home you can apply.

If you are not married but have lived together in a property to which you have contributed in other ways such as helping with extensive renovations etc. which have added value then it is worthwhile seeking specialist family law advice about any claims you may be able to make.

As you may imagine, arguments about what each spouse is entitled to from a property can be very drawn out and complex. I would always advise seeking the advice of a family law specialist regarding your family home given how heavily this can impact your life post separation or divorce. To speak to one of our team, please call 01727 734260.

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If you require assistance with any aspect of Family Law, please contact us on 01727 734260.

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