Who gets to stay in the family home during a separation or divorce depends on the type of property ownership and whether you are married. In this article, we will look at the implications of sole and joint property ownership and being married or unmarried on whether you can stay in your house during the process of separation.
Joint property ownership when married
If you are married and jointly own your property, you and your spouse will have an equal right to stay in the house during a separation or divorce. In this scenario, the courts will only order one party to leave the house during separation or divorce by issuing an Occupation order if there is evidence of actual or threatened domestic abuse (whether physical or mental), harassment or violence. The courts will apply the ‘balance of harm’ test under the Family Law Act 1996 when making the decision to issue an Occupation order.
Joint property ownership, not married
If you are not married and jointly own the home in which you both live (i.e. you have a joint mortgage), if you decide to split up, you will both have the equal right to remain in your home. As such, you both have the legal right to stay in your home until a new arrangement has been reached on a way forward. You may agree, for example, to buy your partner’s share of the property (or vice versa), sell the house and split the proceeds, or live in your house with your children until they reach 18.
Sole property ownership when married
If your home is in sole ownership and you are married, if you get divorced, the person who owns the property will have the right to remain living there. The person who does not own the property may also have the right to remain in the house if they have contributed to the house payments (mortgage payments) or if they have been living there for several years. In this situation, the partner who does not own the house can register for matrimonial home rights with the HM Land Registry, allowing them to continue staying in the house. By doing so this stops the person who owns the house from selling it until the process of divorce, annulment, or dissolution has been finalised and a court settlement has been agreed upon.
Sole property ownership, not married
If you are not married and you live with your partner in a house that is in sole property ownership, then it is the owner who can remain living there. Because you are not married, the person who does not own the house does not have the automatic right to stay in the property or benefit from the equity in the property. That said, it may be possible to make a case to the court that the person who does not own the property should have the right to stay or to equity if they have made a significant financial contribution to the home. In most cases, the person who does not own the property will need to demonstrate they have a ‘beneficial interest’ in the property. This may be the case, for example, if it can be shown that the plan was for you both to own a share in the property by signing a trust deed or written agreement (this is called an ‘express declaration of interests’). This is a complex area of law, and it is advisable to seek legal advice from a family law solicitor who will be able to advise you.
This situation highlights the importance of unmarried couples entering into a cohabitation agreement before moving in together. A cohabitation agreement is a formal legal agreement between an unmarried couple who live together and sets out how assets should be split in the event of separation (rather like if you are married or in a civil partnership), including property, money, and pensions.
If I leave my marital home, what are my rights in the UK?
If you are married and separate from your partner, if you choose to leave the marital home, this does not mean that you lose your marital home rights. You still have the same right to your home whether you move out or not. It is important to bear in mind that your wife or husband cannot kick you out of your house in the UK if you do not want to leave. You have the same right to live in the house as they do. If your ex-partner has forced you from the house or is threatening to do so, seek legal advice as soon as possible. Your family law solicitor can apply for an Emergency Occupation order, which, if granted by the courts, is legally enforceable.
Can my ex just walk into my house in the UK?
Whether your ex-partner or spouse can enter your home depends on whether they have ownership of the house and whether you are married. Depending on the situation, there are various ways to prevent your ex-partner from entering your house. For example, if your ex is threatening physical violence, intimidating, or harassing you, you can apply for a non-molestation order to prevent them from coming near your home. Alternatively, you can apply for an Occupation order if your ex-partner poses a threat to you and/or your child, which will remove them from the home.
