The marital home
You and your partner may own your property in joint names or the property may be in either you or your spouse's sole name. It is important to remember that even if the property is in only one of your names the Court has the power to order that the property should be sold and the proceeds divided or to transfer the property into the other spouse's name. This is also not affected by any pre-nuptial agreement as the Court has discretion to divide up the marital assets as it thinks fit. A Judge may consider the content of a pre-nuptial agreement as evidence of what the parties originally intended, but this is only one factor for the Court to consider. The Court will also consider both parties needs and resources and also whether there are any children of the family who need to be housed.
Jointly owned property
If you own your property jointly with your spouse, you may own your property as "joint tenants" or "tenants in common". If you cannot answer this question then you must find out as soon as possible and your solicitor will be able to advise you what to do. If you are Joint Tenants then you both own the entire property. If one of you dies then the property will automatically pass into the other persons sole name regardless of whether you have split up or what your will says - this is seldom what people want when they are about to get divorced. If you are tenants in common then you each own a separate share of the property and you can specify what this share is. If you do not specify the shares the initial assumption will be that you own the property equally. Your share will not automatically pass to the other person upon your death and you can leave your share in your will.
In almost all cases if you are divorcing or considering divorcing then a joint tenancy should be transferred to a tenancy in common to ensure that your share in the property does not automatically pass to your estranged spouse should you unexpectedly die. This is easy to achieve by formally notifying the other owner. It is important to discuss these issues with your solicitor as soon as possible and should you decide to sever your Joint Tenancy they will assist you in preparing a simple document known as a Notice of Severance. Both you and your spouse should sign this document and then it should be sent to the Land Registry, however if your spouse does not sign it the property is still successfully transferred into a Tenancy in Common and you are able to control what happens to your share of the property.
It is also important to make a will once you have decided to divorce as if you do not have a will then your estranged spouse will receive a minimum of the first £125,000 of your assets. Again, this is seldom something that you would want if you've decided to divorce your spouse, so it is important to address this issue as soon as possible.
Property in one spouse's sole name
If the property is in only one spouse's name then the other spouse has a right to remain there by law and can register a Marital Home Rights notice on the property to secure this and to prevent the house being sold from under their nose.
If this applies to you please contact us as soon as possible regarding this. Registering a marital home right involves filling out a simple form which is registered at the land registry. Once this is done then anyone wanting to buy your spouse's property will discover your notice stating your right to remain in the property. They would then need to have this notice removed before continuing with the purchase, but would need your consent to have the notice removed. The notice is also moved when the marriage is finally dissolved upon decree nisi.
Please remember to proceed cautiously in registering a marital home right particularly if there is a history of domestic violence in your relationship as not surprisingly a spouse can react angrily when they discover that they are no longer free to sell the property that they regard as solely theirs. If you have any concerns regarding this please discuss this with your solicitor.
