Protecting your home ownership rights during divorce or dissolution
If you are getting divorced or dissolving your civil partnership, you should make sure you protect your rights to the family home. This is particularly important if the home is owned by your husband, wife or civil partner. Find out what steps you should take.
- How your home may be owned
- Property owned by one of you
- Property owned by both of you
- Finding out how your property is owned
- Should you change the ownership?
- How to change the ownership
- Contacting your mortgage lender
How your home may be owned
You own your home (either all of it or part of it) if your name is on a legal document called the title deeds.
Your home may be owned:
- by one of you, which means it’s in one of your names
- jointly, by both of you (and there are different forms of joint ownership)
- by someone else (such as a family member)
Property owned by one of you
If your ex-partner (husband, wife or civil partner) owns the family home in their name alone, you may be able to register your interest in it to protect your position. How you do this depends on where in the UK you live and whether the property is registered.
Protecting your rights if the property is in England or Wales
If your property is registered at the Land Registry, you can protect your position by using a ‘matrimonial home rights notice’ or ‘home rights notice’. The first step is to check if the property is registered with the Land Registry for England and Wales.
If you want to register a home rights notice, you should do this as quickly as possible. It’s free of charge and you only have to fill in a form called HR1, which is available on the GOV.UK website.
If your property is not registered with the Land Registry, you can protect your position by applying for a ‘class F land charge’ at the Land Registry, which costs £1.
If the property is not the family home, you may be able to register a ‘restriction’ at the Land Registry.
Once you have registered your interest, your ex-partner cannot sell the property or apply for a larger mortgage without you being told about it.
Protecting your rights if the property is in Northern Ireland
You may be able to protect your position by registering a ‘matrimonial charge’. This means you must be told if the property is to be sold or remortgaged.
You probably need to use a solicitor for this, or at least to provide you with a ‘certificate of identity’. If you prefer, you can talk to someone from the Housing Rights Service.
Protecting your rights if the property is in Scotland
You have the right to live in the property for as long as you are married or in a civil partnership. But you will lose this right if you leave the property for two years or more.
Property owned by both of you
Your solicitor should have given you advice about the best way to own your home jointly at the time you bought it. The two options for owning your home jointly are as:
- Joint tenants (called ‘common owners with a survivorship destination’ in Scotland) – this is where you own the property equally between you. When one of you dies, the other inherits their share, no matter what’s said in their will or if they have a will at all.
- Tenants in common (called common owners in Scotland) – this is where you each own a share in the property. You can split ownership equally between you (50:50) or you can decide that one of you will own more than the other. Your share of the property will pass to whoever you leave it to in your will.
Finding out how your property is owned
If you do not know how you own your home, you should try and find out. Where you do this depends on where in the UK you live.
England and Wales
If your home has been registered with the Land Registry you can do a search, which currently costs £3. If it is owned as tenants in common, it will have the words ‘Form A restriction’ next to the ownership information.
You can find out how your home is owned by doing a property search on the Registers of Scotland website. There is a fee for this, which will generally be £11-£14 plus VAT.
Should you change the ownership?
Couples who are divorcing or dissolving their civil partnership may want to change the ownership of their property from joint tenants (or common owners with a survivorship destination, in Scotland) to tenants in common (or common owners, in Scotland).
The reason to do this is in case you die before the divorce or dissolution is finalised. If this happened and you owned the property as joint tenants or common owners with a survivorship destination, your share would automatically pass to your ex-partner. By changing the way the property is jointly owned, you can prevent this happening.
How to change the ownership
The process of changing ownership from joint tenants (or common owners with a survivorship destination, in Scotland) to tenants in common (or common owners, in Scotland) varies around the UK.
England and Wales
It is called ‘severing the joint tenancy’ and is quite a straightforward process. All you have to do is write to your ex-partner and tell them that you want to sever the joint tenancy. They don’t have to agree to you doing this.
If the property is registered with the Land Registry, you can fill in a form called SEV, which you can download from the Land Registry website.
You will need the help of a solicitor if you want to change ownership from joint tenants to tenants in common. The process will depend on whether your property is registered with the Land Registry (around 25% of land in Northern Ireland is not registered) or Registry of Deeds. You will normally have to get your ex-partner to agree to you changing the tenancy from joint tenants to tenants in common.
You will also have to ask a solicitor to draft the new terms of the tenancy and to have this registered on the title of the property. You will have to pay a fee to the Land Registry or Registry of Deeds to change the ownership. Your solicitor will also usually charge a fee.
Changing ownership from common owners with a survivorship destination to common owners is a very complicated procedure. It’s not something you should try and do without the advice of a family law solicitor.
Contacting your mortgage lender
If your name is on the mortgage, you’re liable for the whole debt, even if it’s a joint mortgage with others.
Contact your mortgage lender to tell them that you and your ex- partner are breaking up. It’s particularly important to speak to your lender if you think you may have problems paying the mortgage, or if you are worried that your ex-partner may not make payments they’ve agreed to.
You may be entitled to help with mortgage payments if you’re on certain benefits. The lender may be able to send you copies of statements. If it’s a joint mortgage, you should also see if you can stop your ex-partner from applying to increase the mortgage.