Possession is nine tenths of the law; or is it? 

There are various different ways of owning property so it is essential that you identify which applies to you as quickly as you can when the marital road starts to become a rocky one.  You can find this out by contacting the Land Registry and obtaining the Office Copy Entries for the relevant property.

What if we own our property jointly?

There are two very distinct ways of owning a property if there is more than one owner:

Joint Tenants – this means that the people whose names appear on the Proprietorship Register own the property jointly and severally.  That is, they have exactly the same rights as each other in relation to the property and cannot sell, mortgage, lease the property (or any part of it) without the other’s consent.  Another important feature of joint tenancies is that they pass to the surviving tenant in the event of the other’s death and do not pass in accordance with the rules of intestacy or the wishes written in their Will.

Tenants in Common – this means that you and your co-owners each have a separate and distinct share in the property and that you have control over what happens to your specific interest.  In direct contrast to joint tenancies, a tenant in common can leave their share to named beneficiaries in their Will.

It is quite common in the course of divorce proceedings for one party to sever the joint tenancy and transform it into a tenancy in common.  This is a relatively straightforward process which your divorce lawyer can undertake for you and will allow you to leave your share of the property to a person of your choosing in the event of something happening to you.

housesWhat if the house is owned in their name?

More and more often I am receiving enquiries from spouses who have moved into property already owned by their other half and who are concerned that when it comes to separation they will have no rights to it at all.  Put quite simply; this is not the case.

If you are married, any property owned in the sole name of the other falls into the ‘pot’ of assets to be considered alongside any jointly owned property.  It is however important to register your interest in the property and this can be done by your family solicitor contacting the Land Registry who will enter a Notice of Matrimonial Home Rights on the property title deeds.  This will alert any future buyers or lenders, should your spouse seek to sell or mortgage the property and give your solicitor notice of their intentions so preventative action can be taken.

There are no set rules when it comes to the division of property in divorce and every case turns on its own unique facts but irrespective of who owns the property, the Court’s first concern will be to ensure that the housing needs of any children are met before applying the other factors set down in the law.  It may therefore be the case that you are entitled to remain in a property, even if you are not named as a legal owner, in order to provide a roof over your children’s heads for a certain period of time.

However, one of the secondary considerations of the Court is contribution and if your spouse invested a lot of time and money in the property before you came along it may be that the original financial interest reverts to them following the children’s majority.

Every case is different and there are no hard and fast rules and it is therefore essential that you obtained tailored advice to your individual needs and circumstances from a specialist family lawyer.

keysWhat if I move out?

Your interest in the property does not cease simply by no longer being in occupation; you should however try to register your interest at the Land Registry before you vacate to avoid your spouse contesting this on the basis that it has ceased to become the matrimonial home.

You should also consider whether you will suffer any financial hardship as a result of moving out, and you should not disrupt the children unless there is a risk of harm if you stay put.  If there is such a risk, you should consider taking legal advice first as it may be that you can obtain an Occupation Order which would allow you to remain in the property to the exclusion of your spouse, even if they are the sole legal owner.


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