As family lawyers, we are frequently approached by clients who are panicked and distressed about their living arrangements and rights in connection with the family home, following separation. This article will provide some insight as to your rights, depending on the circumstances, and the steps you might take to protect your rights.
In the vast majority of cases, the family home is one of the most valuable (if not the most valuable) asset of the marriage. The family home not only holds financial value, but most often also emotional and sentimental value, particularly if any children were born and grew up there. Understandably, one or both parties can be reluctant to leave and cut their ties with the family home.
It is always advisable for someone who is in the process of separating and contemplating leaving the family home to seek specialist family law advice before doing so. However, the reality is, if you and are and your partner are separating, either of you (or indeed both of you) will permanently leave the family home. It is open to you reach an agreement with your partner in this respect, but what happens if there is confusion as to who should leave or remain in the family home and what are the implications either way?
My partner solely owns the property
It is not uncommon for the partner who solely owns the family home to convince the other person that they must leave the family home because they do not legally own it. Irrespective of which spouse owns the property, the family home is a ‘matrimonial asset’ and, as long as the separating couple are married or in a civil partnership, the spouse who does not own the property may still have matrimonial “home rights” in respect of the family home, which includes a right to continue to reside there. These home rights must be registered with the Land Registry to prevent the party which owns the property from attempting to dispose or devalue it in any way (i.e. selling or re-mortgaging the property). When divorce proceedings are concluded and financial/property matters in connection with the divorce are resolved, the home rights will usually end.
If you are in an unmarried relationship, you may still have rights in connection with the property even if you do not legally own it.
I feel threatened and fear for my safety in the family home because my partner is abusive
If your partner is abusive (not limited to physical abuse) to you or any children of the family, you should seek urgent advice as to the steps that you can take to seek protection in these circumstances. You may be able to obtain a Non-Molestation and/or Occupation Order to stipulate who will continue to reside in the family home to the exclusion of the other and/or how the parties should occupy the family home and interact/communicate with one another.
If you are threatened with or subjected to physical abuse, you should call the Police.
Can we both continue to stay at the family home?
If you and your spouse are amicable, in spite of your separation, there can be practical advantages of continuing to live together whilst you resolve divorce, financial and property matters. The most obvious advantage is that, at least in the short-term, you will save the costs of each having separation accommodation. In addition, you can avoid any short-term disruption to any children of the family whilst the long-term financial and property arrangements are resolved.
However, it is important to note that whilst you can still separate and divorce each other whilst living under the same roof, you must each have maintained separate lives during that period.
Can I exclude my spouse from the family home by changing the locks?
In short, yes. However, this is rarely advisable if the family home is owned by you and your spouse jointly as you will both have the right to occupy the property unless a Court orders otherwise. If one party temporarily leaves the family home, they still have the right to return and gain entry. This may mean that, even if you have changed the locks, the other party may change them again. From experience, taking this sort action will only antagonise matters and lead to a more prolonged, hostile and difficult separation.
If I leave, will I still have to pay the mortgage?
If you choose to leave, you may find it difficult to meet the costs of securing alternative accommodation as well as continuing to make contributions to the mortgage in respect of the family home. If at all possible, you should try to agree these arrangements with the other party and you may even be able to use it as a bargaining chip. Often, if one party seeks to reside in the family how to the exclusion of the other, he or she may agree to meet the costs of mortgage by themselves.
Legally, if you and your spouse both own the property and are named on the mortgage, you will both continue to remain jointly liable for meeting any mortgage repayments, even if you choose to leave the family home. Similarly, you are obliged to meet the payments of any household bills in your name.
If I leave, will I lose my rights in connection with the family home?
You will not automatically lose your rights in connection with the property should you choose to leave following separation, particularly if you are married and/or are a joint owner of the property. However, there may still be implications of you leave the property and therefore you should seek specialist family advice before you consider permanently vacating the property.
How will leaving the family home affect the children?
If you permanently leave the family home alone and your partner and children continue to reside there, this will inevitably affect the amount of time that the children will spend with you and could have an impact on the long-term arrangements concerning the children, particularly if children proceedings are issued.
For further information and advice, please do not hesitate to contact us on 01785 272000 to book a free initial consultation.