What happens on separation if your spouse solely owns the family home?

Can I stay in my home whilst we sort things out, if the property is owned in my spouse’s sole name?

Going through a separation and divorce can be a worrying and difficult time, and one of the questions I am often asked at an early stage is whether one spouse will have to move out of the family home whilst a final financial agreement is sorted out. This can often be of particular concern for a spouse if the property is owned by their ex rather than in their joint names as sometimes there might be comments about their “rights” to stay there in the middle of arguments. This is really unsettling for the person who doesn’t legally own the house but also for any children living there too as they may feel they don’t know where they are allowed to live either or are worried their mum or dad will be “kicked out”.

What are ‘home rights’ and how do they protect you?

If you get married or form a civil partnership then you usually gain “home rights” to the house you treat as the family home, even if it’s not legally registered in your joint names, just your spouse’s or they hold the tenancy. That means you are entitled to live there or “occupy” it as a result of the marriage/civil partnership.

Where one spouse is entitled to occupy a property, the other non-owning spouse/non-tenant is entitled to register a home rights notice against the title of the property at HM Land Registry. It’s quite likely your solicitor will advise you to take that step at the start of a divorce, if you haven’t done it before. You don’t have to do this as the rights exist whether the form is registered with the Land Registry or not, but it’s a good idea to do it as a “belt and braces” approach to give you peace of mind.

As a non-owner spouse, the home rights include the right to (unless there is a court order saying otherwise):

• enter and occupy the property: this provides security during the separation and/or divorce proceedings.
• be protected from eviction or exclusion: preventing the owning spouse from being able to forcibly remove the non-owning spouse/ non-tenant from the property without a Court order.
• be given notice of any mortgage possession proceedings
• have any mortgage or rent payments made by them treated as if they were made by the owner or tenant.

Registering homes rights also ensures that any prospective purchaser or lender is alerted to the fact that the property is subject matrimonial home rights. This is often the most critical element when you don’t own the house legally yourself. It does not mean you become a legal owner of the house though, only that you have the ability to live there for a period of time.

It is important to note, that whilst home rights permit occupation, they are intended to provide some reassurance and security for the non-owning spouse to remain in the property until a financial settlement can be reached, hopefully in the format of a consent order (ie an agreed outcome approved by the court). Furthermore, a spouse’s rights of occupation may only be protected in respect of one home at any one time. So, if your spouse owns several properties, you may need advice to put some form of alert/notice on their legal titles if you can’t use the home rights approach.

When do home rights end and what happens next?

Home rights are automatically brought to an end upon one of the following occurring:

• A Final Order of divorce ending the marriage
• A court order requiring the notice’s removal
• The voluntary removal of the notice by the person who has registered it
• The death of either spouse

It is however possible to apply to extend a matrimonial home rights notice, so that those rights do not end on death of the entitled spouse or when the marriage comes to an end. That application must be made before the final order dissolving the marriage is pronounced by the court.  Speak to your family lawyer about whether you need to take any steps of this sort.

If you wish to separate from your spouse, the important thing is to obtain independent legal advice including about whether you are entitled to register a home rights notice or not. This advice can be obtained on an entirely confidential basis before informing a partner of a desire to separate. The Geldards Family Law Team can help with all stages of the divorce and separation process including mediation and financial dispute resolution.