Not on the Mortgage - Do I Have a Claim to My Home in Divorce?

13 March 2018

By Family Law & Divorce Solicitor, Julia Sacco

Many couples are getting married later in their working lives and it’s often the case that one of them already owns a property. If this is the case, it is important for couples to understand what would happen to that property in the event of a divorce.

Determining an Interest in the Property

The name on the property deeds and mortgage will state who the legal owner is, but this doesn’t mean to say that the other person won’t have any legal stake in the property.

Before getting married, the property will have been owned solely by the person named on the deeds and/or mortgage. Once the two people marry, the property will go into what is often referred to as the “matrimonial pot”. The matrimonial pot effectively contains everything that each person owned separately and puts it together. This is because, now that the couple are married, they both have an interest in each other’s assets.

When getting a divorce, the amount of interest that each person has in the matrimonial pot and in individual assets (such as the family home) can be determined by the Court, who will consider a number of factors. These include the length of marriage, each person’s age, whether they have any children and their earning capacity. When dealing with the family home, the Court will also consider the intentions that each person has in respect of the property.

Establishing the Amount of Interest

When getting a divorce, it is important to think about other ways that the person who is not on the mortgage has contributed to the home. It may be that they have paid to maintain the property, paid for repairs and made contributions to the family. This will help the Court to determine how much of an interest in the property each person has.

The Court will also want to know why the property is only in one person’s name. Is this because that person inherited the property? Had it been owned by them for a considerable length of time prior to the marriage? Or was it purchased while the couple was together, but one person had a poor credit rating? These are all considerations which the Court will take into account.

Can I Be Forced Out of the Home During Divorce?

The law states that if one person in a marriage owns the family home in their sole name, the other person has “home rights” to the property. Having home rights to a property gives that person a right to live in the home without being forced to leave. This means that the legal owner cannot sell the home without the other’s permission. It also means that the legal owner cannot make the other person move out or prevent them from moving back in if they have moved out temporarily.

Matrimonial home rights can come into play during a divorce, when one person in the marriage owns the home and the other does not. In order to be protected by home rights, you must officially register your rights with the Land Registry. You will then receive a legal document confirming that you have matrimonial home rights in the property. Your spouse cannot then force you to leave the property, unless they obtain an Occupation Order from the Court. This protection will usually remain in force until the divorce has been finalised.

It’s important to note that if the property is owned jointly with another person, such as a friend or relative, it may not be possible to register your home rights. In addition, you are only able to register your rights against the matrimonial home and cannot register your rights on more than one property at a time.

Speak to a Divorce Solicitor

If you are not named on the deeds or mortgage of your home and you want to establish whether you will be able to make a claim to the home during divorce, speak to one of our Divorce Solicitors who can help you. They will be able to advise you on the amount of weight that the Court will attach to your interest in the family home and how to present a strong case at Court to enable you to get a fair settlement.

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