What happens to the Family home on divorce?

What should happen to the family home is one of the key questions during a divorce -some couples will own their home “jointly” and others as “tenants in common”.

However, there will be instances where only one spouse is the legal owner of the property. This could leave the non-owning spouse feeling vulnerable and unsure of their legal rights.

A simple and cost effective solution to this issue would be to register a Matrimonial Home Rights Notice, which protects the non-owning spouse’s right to occupy the property and prevents their unlawful eviction. This is placed on the property’s title, making the non-owning spouse’s interest clear to third parties. It prevents the owning spouse selling, transferring or potentially mortgaging the property while the notice is in force.

It cannot be removed without an order of the court or the consent of the spouse who benefits from the notice. An application can be made for its removal upon pronouncement of decree absolute, the final stage of the divorce process; by this stage, the future of both partners should be much clearer.

One potential pitfall to be aware of is when land is unregistered. The majority of land in England & Wales is registered centrally with the Land Registry, however, in rural counties, land that has been inherited or kept in the family for some time may not be. The alternative to a Home Rights Notice in this scenario would be a Class F Land Charge, which has the same effect as described the notice above.

Timing is everything and it is therefore vital that a Home Rights Notice or a Land Charge is registered at the earliest opportunity to avoid a sale or unlawful eviction.