The primary concern for many people is whether they will be able to remain in the family home or where they will live if they have to move out. When dealing with financial matters, the first consideration is looking at both parties’ accommodation needs and how these can be met from the assets available. If there are any children of the family their housing needs are paramount.

  • The court can make a number of orders in relation to property:
  • The property can be transferred into the name of either party;
  • The property can be sold and the proceeds of sale divided between the parties;
  • One party can be given the right to remain in the property until a certain event, such as the youngest child reaching the age of 18, after which the property may be sold.

We will assess your personal situation and your aims in relation to the property and consider how this can be achieved. If you plan to remain in the property but do not have sufficient income to pay the mortgage and meet other outgoings, you may need to consider making an application for spousal maintenance assuming the house you seek to remain in is not unreasonable.

1. The family home is owned in my spouse’s sole name – do I still have an interest in it?

Both spouses have the right to live in the family home, regardless of who owns the legal title. However, if you are not named on the title deeds, your spouse could sell or re-mortgage the home without your agreement. To best protect yourself, you should register a restriction against the title to prevent your spouse from dealing with the property alone. Please contact a member of our team if this applies to you.

2. I put more money into the property than my spouse did – will I get this back?

This depends on how the property is held, whether as joint tenants or tenants in common, and whether any other documents were entered into at the time that spouse invested more money, such as a declaration of trust, pre or post nuptial agreement. The general rule is that property owned by a couple in equal shares will be treated as having a 50/50 interest regardless of who invested money in the property, unless there is evidence which contradicts this. We recommend that anyone in this position seeks legal advice at the earliest possible opportunity. If you are considering buying a property with your spouse and want to understand the implications of this in the event that you separate, please contact a member of our team.

4. I’m currently still living with my ex-spouse and the situation is becoming unbearable. Can I make them move out?

You are both entitled to remain in the property so it is normally best to try and agree who will move out and how the costs of maintaining the property will be managed in the interim. In certain circumstances, you may be able to apply for an injunction, such as if your spouse has been violent towards you or is harassing you, known as non-molestation orders and occupation orders. Please contact a member of our team for urgent advice if you are in this situation.

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