Property Rights on Divorce

If you or your spouse have made a decision to separate, then unless the court has excluded one or other of you from living in the house, you both have a right to live there on separation until these rights have been determined on divorce. 

On divorce, the court can make a number of orders relating to the family home. The court can order that one of the couple can remain in the house for a certain period and can determine who should pay the mortgage (if there is one) over that period. If the property is rented, the court can make an order that the tenancy of the property can be transferred from joint names to one spouse, or from one spouse to the other, as long as the landlord consents. 

If the family home is owned by one or both of the spouses, the court can transfer ownership from joint names to one spouse, or alternatively from one spouse to the other, always providing that if there is a mortgage, that the lender has approved of that. 

The house a married couple live in is called a matrimonial home. Even if the property was bought by one of the couple, or rented by one of the couple before the marriage, it is still classed as a matrimonial home after marriage. 

Sometimes, when a couple have made the decision to separate, they remain living in the matrimonial home, although separately. They agree how the mortgage/rent and bills are to be paid and continue living separately until their financial situation has been resolved.

However, more often than not, it is just not possible for a couple to continue living together for any significant length of time and they start to ask if one of them should move out of the matrimonial home. 

The concern for many is if they move out, would that give their spouse who is staying an unfair advantage. However, as long as you can reach agreement as to who is to pay the rent, mortgage and other ancillary payments relevant to the house, there is no unfair advantage gained by the person remaining in the matrimonial home. The only drawback might be that if the person remaining in the matrimonial home does not co-operate with the marketing of the property for sale, then some difficulties might arise with viewings. But estate agents will often offer an accompanied viewing service if it is thought that there might be a reluctant seller. 

Both spouses can remain in the matrimonial home until they are divorced unless there is a court order to the contrary. If only one of the couple owns the house, the spouse who does not have ownership will lose their right of occupation on divorce.

If one person pays the full mortgage payments, then they can seek to claim back the other person’s 50 per cent share in terms of an overall capital distribution. Or one party may agree that they will pay the mortgage in full rather than paying maintenance for the spouse and/or children. It is important to get agreement on this point, preferably in writing rather than having to argue about payments at a later date. 

Mortgage payments should be a priority to avoid getting into debt with the lender, as then your future ability to get a mortgage will be affected. The lender may also try to repossess the property if payments are not kept up.

If you are joint tenants then you remain responsible for paying rent unless or until the Tenancy Agreement has been transferred to the other person’s sole name only with the agreement of the landlord.

If you cannot reach agreement as to who is to pay the bills on separation, then the court can intervene by making orders for payment of the mortgage and related insurances. 

Matrimonial property includes all property, for example, savings, shares, furniture, vehicles, investments and buildings and land.  The matrimonial home, is the house in which you lived together as a married couple.  Matrimonial property and matrimonial home are not the same thing and while matrimonial property is property owned by one spouse or by both jointly, the matrimonial home can be a property owned by a landlord and tenanted by the couple jointly or individually.