How to protect your share in the family home during divorce

If your marriage has broken down or you are going through a divorce, you may be unsure what your rights are in relation to the family home. Like make many divorcing couples, the family home may be the most valuable asset in the marriage and you may be eager to ensure that your interest in the family home is protected whilst you work out how your property and finances will be divided between you and your spouse in the long-term.

The good news is that, whether your family home is owned jointly or solely by your spouse, there are steps that you can take in the short-term to protect your interest in the family home.

If your family home is owned jointly (i.e. by both of you)

If you and your spouse own the family home jointly, you will own it either as ‘joint tenants’ or as ‘tenants in common’. Most often, you will be joint tenants.

If you are joint tenants, you and your spouse will own the property as a whole, in equal shares, and you will both need to agree to a sale or a re-mortgage. Further, you cannot pass on your interest in the property under your Will. This means that, if you pass away before the conclusion of divorce proceedings or before financial and property matters have been resolved, your interest in the property will automatically pass to your spouse as the surviving joint owner (and vice versa).

However, if you are tenants in common, you will still jointly own the property except that you and your spouse will each have distinct shares. You have equal shares or one of you may have a larger share than the other. In these circumstances, you can sell or obtain a mortgage in respect of your specific share. Most importantly, If you pass away prior to the conclusion of divorce proceedings or resolution of financial and property matters, your share of the property will not pass automatically to your spouse but, instead, it will go to the person that you have named as the beneficiary under your Will. However, if you haven’t made a Will, your share will pass in accordance with the intestacy rules and, in your case, your share would still pass to your spouse until divorce proceedings have been concluded. It is important that you have a Will to ensure that, in these circumstances, your share in the property does not pass to someone that you do not want it to go to.

You may wish to protect your share of the property and prevent your share from passing automatically to your spouse in the event of your death prior to the conclusion of divorce/financial matters. This can be achieved by ending the joint tenancy and becoming tenants in common instead. However, this is only advisable if you have or intend to make a Will that clearly states to whom your share of the property should pass in the event of your death prior to the conclusion of divorce/financial matters.

If your family home is owned solely (i.e. by either you or your spouse)

If the family home is owned solely by your spouse, you may still have a beneficial interest in the property even if you do not a have a legal interest. You can take steps to protect your share and interest in the property and to prevent your spouse from carrying out any steps in respect of the property that might affect its value as an asset of the marriage (i.e. selling or re-mortgaging it).

In these circumstances, you will have ‘matrimonial home rights’ in respect of the property and you can register these rights at the Land Registry to protect your interests. Once divorce, financial and property matters have been resolved, your matrimonial home rights can be removed from the Land Register to allow any transactions in respect of the property to proceed.

If your marriage has broken down and you have any questions in relation to your interests in the family home, then get in touch with the Matrimonial team at ORJ Solicitors.

The Matrimonial team at ORJ Solicitors offer a free 30 minute consultation at our offices to assess and advise you in relation to your separation, divorce, children, financial and/or property concerns.

To arrange a free, confidential discussion with our Stafford-based family law team, please email pavneet.matharu@orj.co.uk, or alternatively you can call us on: 01785 223440.

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