How To Protect Your Home Ownership Rights During Divorce

Whether you’re filing for divorce or 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. Understanding exactly how home ownership works and what you can do to protect your rights in this situation is a must.

It is a complex topic, but with a sound understanding of the situation and how best to navigate it for yourself, it could be a lot less stressful than you anticipated. The most common thing to do during a divorce is to sell a home and split your assets, but that can be a long-winded and complicated process. We like to alleviate your stresses where we can, aiming to sell your home within 14 days, allowing you to move on and concentrate on the next chapter of your life.

In this guide:

What is home ownership and how does it all work?

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 people. If your name is legally attached to the property on a title deed, you own either all or part of your home, granting you some rights during a divorce. You could have a home that is owned either by yourself entirely, by your spouse or civil partner, or by someone else such as a friend or 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, your 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 process is easier. You can protect your position by using something called a Matrimonial Home Rights Notice or a Home Rights Notice. You will need your partner’s name and the title number, all of which you can gather at the HM Land Registry. This is free to do – you’ll fill in an HR1 form through Gov.UK. If the property isn’t registered, you can still protect your position. You simply have to apply for a Class F Land Charge through Gov.UK.

Even if the property isn’t the family’s home (for example, if it’s a vacation property) 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 choose 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 they have discussed it with you first. It may be best to consult with a housing rights solicitor or an attorney if you need any advice. Your solicitor should also be able to help you with the request if you have already retained legal services. In England and Wales, you can do this for free through Shelter.

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 will 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.

Who gets the marital home in a divorce?

The home is usually the most valuable asset that two people have together in a marriage, and in a perfect world, all of those assets would be divided evenly. It can be frustrating if that isn’t the case, 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.

The best solution is that the two of you manage to agree between yourselves and how your assets should be divided. You can usually manage to do this through the process of mediation, but we understand that in some cases that just isn’t possible. In those situations, a court may need to decide on your behalf. If it comes to that, you both have the right to live or stay there until the courts decide.

Dividing your home

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 divide the money between yourselves. The money will be split between the two of you however you decide, whether that be an even split or at different percentages depending on how much ownership you have in the property. It’s also possible that one of you could buy the other one out so that you can keep living in the property. 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 and make a decision later down the line. It’s also possible to transfer part 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. 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.

How do I navigate the mortgage during a divorce?

In any of these situations, it’s important to understand that if the two of you have a mortgage together, and you’re both still responsible for the mortgage if both of your names are on it. Therefore, dealing with your mortgage is essential. 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.

• The person whose name is taken off the mortgage should be able to borrow again to buy a home.
• The person who stays in the house no longer has to rely on their ex-partner to support them paying for the mortgage every month.
• 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.

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 if you’re ever unable to make a payment. It’s important to note, though, that becoming a guarantor is a serious legal step, so be sure to discuss this in detail with whoever you ask to take this responsibility on for you.

Getting advice from a solicitor

If you plan to divorce or dissolve your civil partnership, talk to your solicitor about what you would like to happen with the family home and what you think is the best decision for any children involved. 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 situation. Handling it on your own can be a bit complex, so working with a legal professional may be in your best interest.

Sell your property with Good Move

Alternatively, speak to Good Move today. We are one the most regulated property-buying companies in the Quick House Sale industry with acknowledgement from NAPB (National Association of Property Buyers) and RICS, so you can sell your home with us with confidence. We can handle all your legal fees included in the process of the sale, allowing you to concentrate on other aspects of your life with less stress.