In divorce, both parties usually decide between themselves what happens to the house or seek Court involvement to do so.
But what happens when the mortgage and deeds are in one partner’s name?
In his latest article, Simon Immins outlines what rights you have if the house is in your partner’s name.
What rights do I have to the house?
This depends on whether you are married, divorced, in a civil partnership or unmarried; as the rules are different for each.
In this article, we’ll provide advice for couples who are married, divorced or in a civil partnership.
If you’re unmarried, you can find out more about your property rights in our separate article here.
What is matrimonial property?
Matrimonial property, or matrimonial pot, is any property which has been bought during the marriage.
These types of assets are split between the parties in divorce.
Non-matrimonial property, on the other hand, is any property that was bought before the marriage begun.
How does the Court split property?
When a Court is looking at the parties’ assets, they take into account what they have at that time. This could also include assets that were acquired after the separation.
To decide what is and what isn’t matrimonial property, the Court may look at whether property has been kept separate or mixed with other matrimonial property.
What rights do I have in divorce if my partner owns the house?
The family home (i.e. where a married couple lived during their marriage), is considered a matrimonial asset, no matter whose name the property is in.
During a marriage or civil partnership, both spouses have the right to occupy the family home.
However, if your name isn’t on the deeds, you may wish to protect your interest in the house – especially in the event of a relationship breakdown or divorce.
Related article: How to end a Civil Partnership
How can I protect my interest in a property, if I don’t own it?
There are multiple methods that you could use to protect your interest, these are as follows…
Proving that you have a beneficial interest
You might have a beneficial interest in a property if you have a financial share in it, and/or the right to occupy it.
But, even if you do have this, you may need to prove it.
How do you prove you have beneficial interest in a property?
A Declaration of Trust (DoT) can be used to set out your beneficial interest in a property. This would need to be agreed to and signed by both you and your partner.
Ideally, a Declaration of Trust should be set up alongside the purchase of the property, but it is also possible to have it done after completion.
Without a Declaration of Trust in place, proving that you have a beneficial interest may be difficult.
Read our dedicated article on declarations of trust here, or get in touch with our bright team, who have experience in drafting DoTs, here.
Matrimonial Home Rights Notice
If you and your spouse/civil partner are separated, you can get a Matrimonial Home Rights Notice from the Land Registry.
This will give you certain rights, such as:
- The right to not be evicted without Court permission, or
- The right to be told if the mortgage gets repossessed by the mortgage lender
You’ll only be able to get a Matrimonial Home Rights Notice for the family home (where you and you partner lived during your marriage).
How does a Matrimonial Home Rights Notice work?
A Matrimonial Home Rights Notice would include a note in the title deeds stating that you live in the property.
This means that your interest will need to be considered first, before the property is sold. For example, financial matters may need to be resolved beforehand.
A Matrimonial Home Rights Notice would therefore protect your interest in the property, as a potential buyer would need to wait until your interest is considered/dealt with before proceeding.
Please note: A Matrimonial Home Rights Notice is only valid while you and your partner are still married and becomes ineffective upon divorce.
Declaration of Trust
As mentioned earlier, a Declaration of Trust can be used to protect your rights.
If you were to contribute to the mortgage or pay any household costs, a Declaration of Trust would ensure that you have a beneficial interest in the property.
In addition, if one party pays more towards the purchase price, a DoT could be used to make sure that this is reflected within their rights.
Cohabitation Agreements
A Cohabitation Agreement, or ‘living together arrangement’, is a document which details your living and financial arrangements between you and your partner.
Similarly to a Declaration of Trust, a Cohabitation Agreement can be used to set out how the family home is owned and protect your rights.
The only difference being that a Cohabitation Agreement also sets out finances, something that a DoT does not.
Read more on Cohabitation Agreements, and the pros and cons, here.
Advice from an experienced solicitor
Simon Immins, Family Partner at Frettens, said: “If you and your partner are still together, a Declaration of Trust would be the best option.
If you are married but separating you may need to get a Matrimonial Home Rights Notice.
Whatever your situation, our bright team would be happy to answer any questions that you may have over the phone.
We offer a free initial chat for all new clients and can use this time to advise you on the best way forward to protect your interest.”
Specialist family solicitors
At Frettens, we can assist you in:
- Attaining a Declaration of Trust
- Getting a Matrimonial Home Rights Notice
- Applying for divorce
- Obtaining a court order, whether financial or child related
To get in touch, call us on 01202 499255 or fill in the form at the top of this page.
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