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MATRIMONIAL HOME
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The family home usually represents the largest asset and is
often the subject of great attachment and emotion when a
divorce threatens to take this away particularly where there
are children involved.
Judges have wide powers to transfer ownership of the property
from one to the other irrespective of whether it is in sole or
joint names. The home can be sold and the net proceeds split
between the parties or it can be transferred to the sole name
of one of them with a lump sum being paid to the other for
his/her share. What is a fair split is not always simple since
fairness demands that factors other than financial
contributions made to the home by the parties have also to be
taken into account e.g. the needs of the parties, needs of
children. Where a home for the children is needed often an
unequal division may be necessary to ensure that the parent
with care of the children can retain the house for the benefit
of the children.
Very often the matrimonial home has to be sold to reduce
mortgage commitments and enable both parties to re-house
themselves in smaller accommodation. Whether this is possible
will depend on the income that each party has. If there are no
children and the marriage is relatively short then a sale and
equal division is more likely.
There are many myths and personal anecdotes as to the fate of
the matrimonial home on a divorce. These should be ignored
since every case is different and the circumstances of your
own personal case are all that should be taken into account.
Once financial disclosure has taken place and solicitors have
been able to give some advice you are in all a better position
to negotiate and assess what a realistic outcome might be.
Protecting the Matrimonial Home in Sole Name of one Spouse
Where the matrimonial home is held in the name of one spouse
the other spouse will always have: -
a) Matrimonial homes right - i.e. a right of occupation under
the Family Law Act 1996. However this is a right of occupation
and does not prevent the owner from selling or mortgaging the
property.
b) Have a beneficial interest in the property under common law
by virtue of financial contributions to the purchase of the
home or payment of the mortgage.
The legal right of occupation means that you have the right
not to be evicted from the home if you are in occupation or
the right to re- enter the home and reside there if you have
left. These rights can only be taken away by Court Order.
These matrimonial home rights above can only be ended by death
of the spouse who owns the home or dissolution of marriage
(unless the Court has ordered otherwise). The court has powers
to terminate or suspend matrimonial home rights before the
termination of the marriage.
Preventing Sale or Mortgage
Matrimonial home rights: It is a solicitor’s duty on behalf of
their client, to take urgent steps to prevent a sale or
mortgage of the matrimonial home, which is in the sole name of
the client’s spouse since any matrimonial homes rights would
be rendered of little value if the home is sold or mortgaged
by the other spouse. To prevent this occurring we can register
a notice:
• Where the property is unregistered we Class F land charge
should be registered
• Where the property is registered land a Notice in the
Charges register is placed.
Please note that matrimonial homes rights can only be
registered against one property.
The effect of registration of the above notices is that a
potential buyer or lender will withdraw from the transaction
as they will have been placed on notice that vacant possession
will not be available without the consent of the other spouse.
Beneficial Interests: This arises where the non owning spouse
has made a financial contribution towards the house purchase.
Where a spouse has a beneficial interest in any property
whether it is the family home or other property there is an
automatic right to occupy the property. Beneficial rights can
be protected by: -
• Where the property is registered land then under the Land
Registration Act 1925 section 70(1)(g) a spouse's right of
occupation is an ‘overriding interest’ and therefore any
mortgage lender will lend subject to that right or a purchaser
will buy subject to that right. The only way in which a
purchaser or mortgage lender can avoid such interest is if no
rights were registered.
• Where the property is unregistered the situation is slightly
different and more difficult to protect the beneficial
interest. A purchaser or mortgage lender will only be subject
to the spouse's beneficial interest if the buyer or mortgage
lender has had actual or constructive notice of the beneficial
interest.
Where an interest in property is being claimed through court
proceedings then this should be protected:
• in the case of property which has an unregistered title by
registration as a pending land action; and
• In the case of property which is registered by a
restriction.
Where decree absolute has been pronounced but the issue of
ancillary remains relief is unsettled and there is land in the
frame of matrimonial assets then this will have to be
protected by a pending land action or caution. It is important
to note that the matrimonial home rights will come to an end
on decree absolute unless these have been extended by the
court.
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