When a couple separate there are many misconceptions regarding their respective rights in the marital home, particularly if it is in the sole name of only one of the spouses.
It is the case that even if the marriage breaks down, the non-owning spouse has a continuing right to occupy the property until the final decree of divorce. If this is disputed by the owning spouse, the right of occupation can be enforced by the non-owning spouse registering a Marital Home Right’s Notice with the Land Registry.
The only way that a spouse’s rights of occupation can be restricted or terminated is in the event of domestic abuse, in which case an Occupation Order can be made against the alleged perpetrator, barring their rights to the marital home under the Family Law Act 1996, to prevent the risk of harm.
When it comes to the non-owning spouse’s financial rights in the family home, this will depend on the unique circumstances of the case such as the length of the marriage, the parties’ resources, their housing needs, their respective contributions to the property and whether there are children as the priority of the Court will always be the welfare of the children.
If the spouses enter into a Pre-Nuptial or Post-Nuptial Agreement, this can limit the claims that the non-owning spouse has over the marital home, however, this will still not be binding if it is not considered fair or equitable by the Court. In most instances, the marital home will be considered as the most significant asset, at “the heart of the marriage”, and in these circumstances will be deemed a marital asset, to be shared upon the breakdown of the marriage, whether or not it is in the sole name of one of the spouses.
Various Orders can be made depending on the net value of the property, how much the property is mortgaged for, the parties’ respective resources, the respective contributions of the spouses and the housing needs of the spouses and any minor children’s, including
- An Order transferring the marital home to a spouse, either with or without a payment of a lump sum, or a financial charge to the other spouse, which will be triggered upon the occurrence of a number of factors such as the occupying spouse’s remarriage or cohabitation or the youngest of the children reaching the age of eighteen. Of course, for the purposes of this type of Order, the transferee spouse will need to have sufficient earning capacity to cover the mortgage secured against the property, and enough mortgage capacity to take over any such mortgage and buy out the other spouse’s equity, if applicable.
- A sale of the marital home, with consequential provisions for sale, being prescribed, including how the proceeds of sale are to be distributed between the spouses.
- A deferred Order for sale of the property until a trigger event occurs, such as those listed above, or for a fixed period of time, until a long stop date. This is an option if there is not enough equity in the property to purchase suitable accommodation or one spouse has little or no mortgage capacity.
- An Order giving one spouse the right to occupy the marital home, for life, or until their remarriage. This is known as a ‘Martin Order’ and this tends to be used if a couple has no dependent children and the non-resident spouse has no immediate requirement for capital to pay for somewhere new to live.
There is no ‘one-size fits all’ approach, when it comes to deciding what happens to the marital home following a divorce or separation, which is why tailored legal advice is essential.
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