Matrimonial home rights: Where do I stand if my spouse owns our home?

Many married people do not appreciate that they may have legal rights associated with their home, even if they don’t own it. Below we consider what can be done to protect yourself whilst going through a divorce, or even if you have hit a rocky patch and just want some reassurance.

My spouse owns our house in their sole name, and I am worried they may sell it against my will so I have nowhere to live. What can I do?

HM Land Registry maintains a registry of the legal ownership of plots of land in England & Wales. When you (or your spouse) buy a house, your conveyancer will tell the registry to update their records. The title register at the registry will list the legal owner of a property, along with any restrictions on sale. Mortgages are listed on this document, so that anyone attempting to buy the property knows that there is a debt owing on it and that the bank needs paying back. However, it is also possible to have the registry add a restriction telling potential buyers that a spouse who is not the legal owner has an ongoing right to live there, even if the legal owner sells up.  This is called a matrimonial home rights notice. Under the Family Law Act 1996 (‘FLA’), you can be entitled to one if:-

1. You are married to the legal owner of the property; and
2. You presently occupy (or have in the past) the property as your matrimonial home (i.e. the place where both of you live together whilst married, with any children of the family if you have them).

You don’t need your spouse’s permission to have the registry enter a notice on the title register, notifying other people of your right. The process involves submitting an application form. However, once the registry processes your application, they will notify the legal owner (your spouse) of the change to the register, so it is not possible to obtain a notice in secret.

Registration of a matrimonial home rights notice does not technically prevent your spouse from selling the property. However, the warning notice on the register will send most prospective buyers running for the hills, unless it is known that they are buying from a divorcing individual and therefore that the rights will shortly be coming to an end.  Matrimonial home rights come to an end when the marriage ends, so when your divorce final order (or decree absolute if the divorce application was made before 6 April 2022) comes through.

Registering matrimonial home rights gets significantly more complicated if your spouse is actually a joint owner of a property with a third party (for example a sibling or an old partner/housemate who has since moved out). It will not always be possible to register in this scenario.

My spouse owns our house in their sole name, and I am worried that my financial contributions to it over the years are meaningless. Where do I stand?

Under section 24 of the Matrimonial Causes Act 1973 (‘MCA'), the court may make a property adjustment order as part of a financial remedy claim upon divorce. If you are divorced or in the process of divorcing, you can ask the court to make a financial award settling matters between you and your ex-spouse. Under section 25 of the MCA, the court will take into account a variety of factors (including who contributed what to the purchase and upkeep of the property during the marriage, but putting the needs of any children of the family and of each partner first and foremost) and can order the transfer of a property from one party to another (regardless of who owned it before the divorce).  The court can also order that the property should be sold, and it can make an order about how the proceeds are to be split, which is not based on who owned the property at the point of sale. The court will take a forward-looking approach, dividing assets between the parties so as to set them up for their separate lives.  Therefore, if your house (or the majority of the assets in general) is legally in your spouse’s name, all is not lost.

I am cohabiting with someone in a property held in their sole name. Can I still benefit from protections?

If you are not married, you will not automatically have a right to occupy the property under the FLA. However, if you have done substantial work to the property, paid for renovations, or contributed to mortgage payments and monthly running costs, you may acquire a beneficial interest in the property by way of a constructive trust. This might mean that you are entitled to a share of the proceeds if the property were sold. However, this is a complex area of property law and highly fact specific on a case-by-case basis.

Click here to see how Brett Wilson LLP's specialist family law solicitors can advise on the treatment of assets during divorce. To request a consultation please send us an email, complete our online enquiry form or call us on 020 7183 8950.  If emailing or using the online form, please provide a short outline of your situation.