Posted by Emma McMorrow, Senior Associate
Your home in divorce
It goes without saying that separating from a spouse or civil partner is often a stressful and emotional time. Worrying about how to protect your interest in the family home or your right to remain living there is often a concern of many separating couples. Emma McMorrow from our Family team discusses some of the main points she would advise her clients on.
Leaving your property
At the time of separation, most people are still living with their ex-partner. Quite understandably however, one party often choses to leave the home until the divorce or separation has been finalised.
When considering whether to remain in the property or not, the first question we are often asked is how leaving affects that party’s interest in or claim to the family home.
When you legally and beneficially own the property jointly with your ex-partner, leaving the house does not affect your right to claim your interest in it. However, you may wish to consider how you hold that property moving forwards.
A property can be held either as ‘joint tenants’ or ‘tenants in common’. Most couples own their family home as joint tenants. Holding the property in this way means that the property automatically passes to your ex-partner if you die – you cannot pass on your ownership to anyone else in your Will.
When a couple separates, holding the property as joint tenants is often no longer desirable. Therefore, many parties choose to change the way in which the property is owned to ‘tenants in common’. This means that the property does not automatically go to the other owner if one of you dies and each party has the ability to pass their share in the property to someone else in their Will (be it a child, sibling, parent, new partner etc.).
What if your name is not on the deeds?
If the property is only held in your ex-partner’s name, you should take additional steps to protect your interest and your right to remain in your home. Registering your home rights with the Land Registry can help stop your partner selling the property.
Before taking this step there are factors to consider, such as whether your spouse or civil partner owns the property with anyone else. If the application is successful you can usually live in the property until the divorce, annulment or dissolution has been finalised and a financial settlement agreed. In some circumstances this right can continue beyond that point if ordered by the court.
If you are unsure about how you and your spouse or civil partner own your family home, taking professional advice at the time of separation from a Family Law solicitor can help take away some of the uncertainty and ensure that your position is protected.
Contact specialists Vandana Chitroda or Emma McMorrow for advice on separation and divorce.
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