Most married couples who own their own home will have registered it in their joint names when they bought it. However, not all couples do this and it is important to take steps to safeguard the non-owning spouse’s position if they separate or divorce.
Most homes these days are registered. Compulsory land registration began in the 1960’s and was gradually introduced throughout the country over the following 65 years until the whole country became subject to it in 1990. There are still some unregistered properties, but they are rare nowadays. Whenever a house is purchased or remortgaged, the ownership must be registered and there are not many residential properties left that haven’t been sold or mortgaged since 1990. When my mother sold recently sold the house where she had lived for almost 50 years, it was unregistered, presumably because when my parents bought it in 1971, that part of Suffolk was not yet subject to compulsory registration. I don’t know whether her conveyancing solicitor was thrilled to find that the ownership was proved by old-fashioned property deeds, rather than a nice modern registration. When I was a trainee solicitor, enduring my conveyancing training in in the early 1990’s, my heart used to sink when I had to deal with an unregistered property; my boss on the other hand told me how lucky I was to be dealing with something so interesting. I am afraid that I did not share his love of unregistered conveyancing.
Anyway, thankfully, the vast majority of residential properties are now registered, but they aren’t always registered in the joint names of the couple. When I see that in a divorce or separation, I immediately wonder why that is the case.
There are many legitimate reasons why the family home may only be registered in the sole name of one spouse.
For example, he or she may have owned the property before the relationship began and they never got around to transferring it into joint names.
Another example is that one spouse might have been bankrupt or had money problems which made it essential that the house is held in the sole name of the financially better off spouse. It might even have been transferred into the sole name of one spouse by a co-owner with money problems in order to avoid it being lost in a bankruptcy (although that can be problematic as a trustee in bankruptcy can seek to set aside such transaction at an undervalue if the transfer was designed to do that if the transfer took place within 5 years before the bankruptcy was declared.)
Sadly, there are also cases where the house is owned in the sole name of one spouse for more sinister reasons, such as a desire to exercise control over his or her spouse.
Joint owners of properties are entitled to occupy the property, unless there is a court order preventing them from doing so. If a client is not an owner of the property, does this mean that the owner spouse can just kick them out?
No. A spouse who is not one of the owners of their home has Home Rights under the Family Law Act 1996. This means that, while they are married to the other owner, they are entitled to occupy the property and cannot be forced to leave, other than by a court order ordering them to vacate.
They should also register their Home Rights in relation to the property at HM Land Registry. This effectively prevents the owner spouse from selling the property or mortgaging it without their consent.
However, there are two important caveats:
- If the non-owning spouse vacates the property voluntarily, he or she cannot return to live there without the consent of the owner spouse or a court order permitting them to do so.
- The Home Rights end when the marriage ends. Therefore, once a Decree Absolute has been made in an old-style divorce (i.e., where the divorce petition was issued by the court before 6 April 2022) or Final Order is made in a no-fault divorce (issued by the court on or after 6 April 2022), the Home Rights come to an end and the non-owner former spouse no longer has the right to occupy it. There are two solutions to that problem. The court can make an order that the Home Rights continue notwithstanding the Decree Absolute/Final Order. Alternatively, a restriction can be registered at HM Land Registry to protect the non-owner spouse’s beneficial interest in the property (which effectively means his or her claim for a share of the equity as a result of their divorce).
Registering Home Rights etc. is a perfectly reasonable step to take, even if the non-owner spouse has vacated the property. It should not be regarded as a hostile step in the divorce; it is a prudent safeguard and the registration can be removed in due course to enable the parties to implement the terms of a financial agreement.
Normal practice amongst divorce lawyers is to delay the application for the final Divorce Order/Decree Absolute until a financial order has also been made (and where there is a pension shafting order, for a period of 28 days). However, an applicant for a divorce (or, under the old system, a petitioner) can go ahead and seek the the Final Order/Decree Absolute 6 weeks after the conditional order/Decree Nisi is made, without providing any notice to the respondent. This can cause problems.
Firstly, it can pose a significant risk that a client may not receive a fair share of their spouse’s pension. (That is a complex topic which I will try to blog about in the near future).
Secondly, the non-owning former spouse client will suddenly find that they are not entitled to occupy their own home, and might be required to leave by the owner spouse. It will be too late to seek an order from the court that the Home Rights continue notwithstanding the making the final order/Decree Absolute. In those circumstances, one of the following steps may be needed:
- An application for an Occupation Order to enable the no-owning spouse to continue to occupy the property until the court has resolved the financial dispute between the parties.; and/or
- An application under section 10 (2) Matrimonial Causes Act 1973 for the court to consider the parties’ financial circumstances after the divorce. However, this must be sought before the Final Order/Decree Absolute is made as it works by preventing the Decree Absolute/final order being made until that application has been determined. Such applications used to only be possible in two years’ separation with consent and five years’ separation divorces, and were quite rare. They are possible in all new style no-fault divorces. Many practitioners fear that they will now become much more common.
Some practitioners have argued that it should be impossible to seek the final order/Decree Absolute until the court has also resolved financial issues by making a financial order (hopefully a consent order reflecting the terms of an agreement). The new no-fault divorce law introduced on 6 April 2022 does not introduce this measure. The difficulty with it is that it would serve to prevent people from ending their marriages, potentially for a lengthy period, and compel them to incur the cost of obtaining a financial order (something which is usually far too complex for people who represent themselves).
All of this is yet another example of how the law can be a complex minefield and why anyone who is facing a divorce or separation should seek legal advice from family solicitor who specialises in family law at an early stage.
28 May 2022
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