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Who gets to live in the house during a divorce?

20th October 2020

You may have noticed over the weekend that the Sunday headlines were full of tales about ex-Manchester United footballer, Patrice Evra’s 13-year marriage now heading for divorce, after he left the marital London home to live with a model.

Whilst the decision to leave the matrimonial home appears voluntary, it does highlight an interesting aspect of the divorce process for those couples without a second property to move into; who gets to live in the matrimonial home during the divorce process and afterwards?

The matrimonial home in divorce

Whether a property is rented, owned by one spouse or jointly owned (as joint tenants or tenants in common), both parties are entitled to remain in the home during the divorce process until they agree different arrangements, or a Court order allows for the sale or transfer of the property.

An interesting aspect of property in divorce is the Matrimonial Home Rights, under which each half of a couple whether married or in a civil partnership are automatically entitled to a share when they live together in a single property.

As the name suggests, Matrimonial Home Rights only concern the marital home, deemed to be the property the couple occupied together. Other properties owned by either spouse, such as rental properties or a holiday home, are not covered by these rights.

The purpose of this automatic right is to prevent one spouse from being evicted from the family home by the spouse who has a legal right to occupy the property, because their name is on the paperwork.

Reduce the risk of your home being sold out from under you

Problems can arise when the matrimonial home is put up for sale, often without the knowledge of the other spouse.  A spouse may not be named on the deeds or mortgage papers for example, yet retains the right to remain living there until after the decree absolute, or other arrangements are agreed.

To prevent this happening, the non-property-owning spouse can register their Matrimonial Home Rights with the Land Registry, using a Matrimonial Home Rights Notice.

This results in a notice being entered into the title register for the property (providing it is registered at Land Registry), so it is clear to any potential property buyer that a non-owning spouse with Matrimonial Home Rights will be living in the house, even if they follow through with the purchase.

The Matrimonial Home Rights Notice itself does not prevent the property-owning spouse from either selling or re-mortgaging the property, but as you would imagine, it is a situation unlikely to be accepted by any potential purchaser or mortgage provider once they are all made aware of it.

How can you remove a home rights notice?

A Matrimonial Home Rights Notice placed upon a property, can only be removed with an application to the Land Registry, in a limited set of circumstances, which include:

  • Death of either spouse or civil partner
  • Decree Absolute or Final Order confirms marriage has ended or civil partnership dissolved
  • Court Order granted to remove the Notice
  • The Notice has been improperly registered
  • Person who placed the Notice consents to its removal

Improper registration, referred to above, covers a number of different situations that are becoming increasingly common in the divorce cases we handle for clients, particularly those with more than just the marital home to consider.

A Matrimonial Home Rights Notice would be considered as improperly registered if it was applied to a property that had never been a couple’s matrimonial home, perhaps a buy-to-let or an infrequently used holiday home.  Improper registration would also apply to the incorrect use of the process, which is intended to protect the rights of an individual to continue living in the matrimonial home or return to it, during divorce.

A Notice should not be used for financial gain or to intentionally frustrate the sale process to annoy the other spouse, both reasons that can be overturned with a Court Order that lawfully allows removal of the Notice.

Divorce requires professional advice

There are plenty of legal avenues to explore without risking the registration of a Home Rights Notice being overturned by the Courts.  Should you be facing or considering divorce or dissolution where property is involved,  then you need professional legal advice from an experienced lawyer who understands the challenges ahead.

Please get in touch with Mike Vale, one of the region’s leading family law specialists and a member of the Family Law team here at Ansons, on 01543 267236 or email mvale@ansonssolicitors.com

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