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Dividing your home in a divorce settlement

dividing your home in a divorce settlement
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As if ending a marriage and going your separate ways isn’t stressful enough, at some point you’ll have to consider how you are going to split the home you made together. If you’re going through a divorce or dissolving a civil partnership, it’s important to know where you both stand when it comes to dividing your home in a divorce settlement.

Who owns the home?

The first thing you need to figure out is who exactly owns the home. Is it in your name, your partner’s name or do you have joint ownership? It may even be the case that a family member or a trust owns the property.

Matrimonial home rights notice

If your ex-partner owns the property then you should register your interest as soon as possible at the Land Registry in England and Wales. Use a matrimonial home rights notice or a restriction, if it isn’t the family home. Both will mean the home cannot be sold, transferred or re-mortgaged without your knowledge or consent. The system in Scotland is different and you have to apply through the courts to have your occupancy rights declared. It’s important to do this as soon as you decide to separate.

Jointly owned properties

There are two ways in which a property can be jointly owned. The first is as ‘joint tenants’ (or ‘common owners with a survivorship clause’ in Scotland). This means the home is jointly owned without anyone having specific shares. If one partner dies the other will automatically inherit their share of the home, regardless of whether or not there is a will. The second way is as ‘tenants in common’ (‘common owners’ in Scotland). If this is the case then each partner owns a share of the property’s value. In the event of death, the deceased can leave their share to whomever they want in their will. If there is no will then the remaining partner can inherit the property as long as they were married or in a civil partnership.

Changing joint ownership

During the separation you may choose to change from being joint tenants to being tenants in common. This means that if you die before the divorce goes through you can leave your share of the home to someone else – your children, for example. This process is called severing the joint tenancy and leaves each partner owning 50% of the property. You will have to make a new will to determine who should inherit your share in the event of your death.

Property in one name

dividing your home in a divorce settlementIf the property belongs to either you or your ex-partner the value is usually taken into account when calculating the final financial settlement in the divorce. If your ex-partner was the legal owner but you were married or in a civil partnership then you have the right to continue living at the address until the divorce or dissolution goes through. After that your ex-partner must give you proper notice before expecting you to leave.

Property owned by someone else

If the home is in someone else’s name then there is a chance that you won’t be able to claim an interest in it. However, depending on your circumstances you may be able to factor its value into your divorce settlement. This is a hugely grey area and it is best to seek professional legal advice before acting.

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About Maria Brett

About Maria Brett

Maria is a freelance writer with over 10 years' experience producing content for a variety of publications and websites. When not working or looking after her two gorgeous sons, she can usually be found playing flugelhorn in a brass band, helping out at her local hospital radio station, shouting at the television while watching Formula 1, at the cinema or plonked on the couch with a cold glass of wine.

Website: Maria Brett

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