How To Protect Your Home Ownership Rights During Divorce

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Whether you’re filing for divorce or you’re simply dissolving your civil partnership, protecting your home ownership rights is essential, particularly if your spouse or partner owns the home. Relationship rights and housing rights in the UK are often called into question. You may be asking yourself, “If I leave my marital home, what are my rights in the UK?” Understanding exactly how home ownership works and what you can do to protect your rights in this situation is a must.

Understanding Home Ownership

Homes can be owned by several different parties, and most people either own their entire home or part of it, offering different property rights to different parties. If your name is on a legal document called a title deed, you own either all or part of your home, thus granting you some divorce rights. You could have a home that is owned completely either by yourself, by your spouse or civil partner, or by someone else like a family member. You could also own part of the home if it’s owned jointly.

If the property is owned by one of you, it is possible the ex-partner could register their interest in the property to protect their matrimonial home rights. If the property is registered at the Land Registry, this is a lot easier. You can protect your position by using something called a Matrimonial Home Rights Notice or just a Home Rights Notice. You will need your partner’s name and the title number, all of which is information you can gather at the HM Land Registry. This is free. To complete the process, you’ll fill in an HR1 form through Gov.UK.

If the property isn’t registered, you can still protect your position in it. You simply have to apply for a Class F Land Charge through Gov.UK.

Even if the property isn’t the family’s home (if it’s a vacation property or something similar), you can still register a restriction through the Land Registry, but it’s important to note that you can only protect your right to live in one property at a time, so if the two of you owned multiple properties together, you’ll have to select one. If you have home rights at one property, but you need them transferred to another one, you can ask HM Land Registry to handle the process for you.

Registering your home rights means your ex-partner cannot sell the property or even apply for a larger mortgage without ensuring you’re told about it. It may be best to consult with a housing rights solicitor or an attorney, and in England and Wales, you can do this for free through Shelter. Your solicitor should also be able to help you with the request if you have already retained legal services.

If the two of you own your home jointly, you are either joint tenants or tenants in common. Either way, your name is on the house too. Joint tenants are sometimes called common owners with a survivorship destination. It just means that the property is shared equally between the two of you. If one of you dies, the other one would inherit your share of the property.

Tenants in common, though, is a different situation. In this situation, you each own a share of the property, and that ownership could be split equally or you can decide that one of you owns more of it than the other. The share of the property that you own passes to whoever you leave it to in your will.

If you’re not entirely sure how the property is owned, it’s fairly easy to search for it if it has been registered with the Land Registry. You may want to use an HMLR fee calculator to decide how much the search will cost. If it is owned as tenants in common, you’ll see a Form A restriction by the ownership information on that website.

So, What Happens To The House?

The home is usually the most valuable asset the two of you have together, and in a perfect world, all of those assets would be divided evenly. That usually includes your home, even if only one of you bought it or has your name on the title deed. It can be fairly frustrating, but the simple reality is that there’s no one right answer to what happens to the house. There are no standard splits or one-size-fits-all solutions because home ownership doesn’t look the same for every couple (as evidenced by the section above). The best thing that can happen is if the two of you manage to come to an agreement between yourselves and how your assets should be divided You can usually manage to do this through the process of mediation or arbitration, but in some cases, that’s just not possible. In those situations, a court may need to decide for you. If it comes to that, though, you both have the right to live or stay there until you decide by the courts.

Dividing Your Home

Wondering exactly how a home gets divided? If the two of you are separating or dissolving your civil partnership, you do have a few options, particularly if you both own the home. You can sell the home and both of you can leave. The money you’ve raised on the home will be split between the two of you. It’s also possible that one of you could buy the other one out. You may also decide to keep the home and not change the ownership information at all. In that situation, one partner may decide to live in it while the children are growing up. It’s also possible to transfer part of the value of the property to one partner as part of the financial settlement between the two of you.

One other option is a Mesher order. In this situation, a court in England or Wales defers the sale of the home until a specific event occurs. Imagine, for example, the sale is delayed until the youngest of your kids turns 18. Once that happens, the sale proceeds, then the net sale proceeds are divided according to the terms of the court order.

You could also use a Martin Order to have the sale of the house divided. This entitles one person to occupy the property until they die or until they remarry. This is commonly used if the couple doesn’t have children and the other partner doesn’t need the money from the sale immediately.

Dealing With The Mortgage

In any of these situations, it’s important to understand that if the two of you have a mortgage together, you’re both still responsible for the mortgage if both of your names are on it. If it’s possible, it may be best to try to sort that out so the mortgage has just one partner’s name on it. There are several advantages to ensuring this is the case. First, the person whose name is taken off the mortgage should be able to borrow again to buy a home. Second, the person who stays in the house no longer has to rely on their ex-partner for the mortgage itself. Maybe the most important benefit of this situation, though, is the fact that both partners can break the link that currently holds their credit files together. If there is a joint debt (like a mortgage), the credit files are connected, so how your ex-partner manages his or her debts affect your credit record. Dealing with that mortgage is essential in this situation.

If, for some reason, you can’t afford to take over the mortgage on your own, you may still be able to get a mortgage on the property. Often you can apply for what’s called a guarantor mortgage. In this situation, a close relative agrees to guarantee your mortgage payments even if you can’t. It’s important to note, though, that becoming a guarantor is a pretty serious legal step, as it can mean taking on a heavy debt liability if the borrower can’t, so not everyone will be willing to help you in this manner.

Talk To Your Solicitor

If you plan to divorce or dissolve your civil partnership, the single best choice you can make is to talk to your solicitor about what you hope happens with the family home and what might be the best decision for any children who are involved in the situation. Your solicitor can help guide you through the entire process, what you may be entitled to in terms of the home and the separation of the property, and what may work best for your particular situation. Handling it on your own can be a bit complex, so working with a legal professional may be in your best interest.

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