Rights to Property If My Name Isn’t On The Mortgage
Since the shared marital home is usually the most substantial financial asset for divorcing couples, it comes as no surprise that this can often cause problems in the divorce process.
If the property deeds are only in the name of one spouse, this can lead to additional challenges.
In this article, we will consider the rights of a spouse to the matrimonial home if your name is on the mortgage or not.
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What are your rights to the property if your name isn’t on the mortgage?
Just because only one spouse is named on the mortgage deeds does not mean the property will automatically revert to that spouse upon divorce.
Unless a marriage has been short, normally any assets which have been brought into the marriage by one spouse will end up being shared with their partner.
This will normally be the case in terms of a property that had already been purchased by one spouse prior to the marriage but ended up becoming the matrimonial home.
What happens to the house in a divorce? The circumstances of the marriage and both parties will need to be assessed individually before a court can make a decision on what should be done with the matrimonial home.
Sometimes it will order that one spouse should be entitled to carry on living in the home (especially if there are any children under 18 living at home) – even if the property is owned by the other spouse.
At other times, it may order a sale of the home and decide on how any assets should be divided up – with a starting point of a 50:50 split of assets.
Do I have any rights to the property if my husband owns it?
Something we often hear from our clients is, “my husband wants a divorce but he owns the house we have lived in during the marriage, do I have any rights to the property?”
The court will look at each individual case on its merits, however, you can register your interest in the property by registering a matrimonial home rights notice with the land registry.
What are Matrimonial Home Rights?
While the divorce process is still ongoing, spouses have ‘home rights’ in their shared matrimonial home, under the Family Law Act 1996.
The effect of Matrimonial Home Rights is that, even if the property is owned by just the husband or wife, their spouse retains a right to live in the property until the divorce has been finalised and a settlement agreed.
How do I apply for Matrimonial Home Rights?
Matrimonial home rights need to be registered with the Land Registry and take the form of a notice.
This notice essentially prevents the property from being sold, transferred, or mortgaged by the spouse who owns the property, unless consent has been obtained from the other spouse.
It is first necessary to check that the property in question is registered in the name of the relevant spouse and find its title number, by searching the HM Land Registry.
An application then needs to be filed with the Land Registry; there is a different application for registered properties and unregistered properties.
Once the application has been accepted, the Land Registry will then confirm the notice (both the applicant and their spouse will be notified).
We offer a Matrimonial Home Rights Application Service for £45.00.
Do my rights still stand after divorce?
The Matrimonial Home Rights notice will generally be removed once the decree absolute has been granted and the divorce process is complete.
However, in the case of an ongoing dispute, it is possible for the court to grant a ‘continuation order’ which allows the spouse to remain living in the property.
Furthermore, a court may decree that the spouse can remain living in the property as part of the divorce settlement, especially if there are any children under 18.
Do I have more property rights if I have children?
When it is deciding how a marital home should be dealt with after the divorce, the primary concern of the court will be to protect the welfare of any children under the age of 18.
They will then look at other factors set out by section 25 of the Matrimonial Causes Act 1973, including:
- The income, earning capacity, property, and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The financial needs, obligations, and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The age of each party to the marriage and the duration of the marriage.
Once it has assessed the circumstances, the court will decide if either spouse should be allowed to carry on living in the matrimonial home.
If there are children under 18 still living at home, the court may order that the mother should be allowed to carry on living in the home, even if the property deeds are in the name of her ex-husband.
Transfer property to spouse
A divorcing couple should try and decide how they intend to deal with the matrimonial home between themselves if possible.
If they manage to come to an agreement, which may include a partial or complete transfer of property to spouse, this can be given legal force through a consent order. If they are unable to reach an agreement and mediation does not work, it may be necessary to go to court.