Protect your Rights...

I recently have had several clients contacting me very concerned that they are separating from their husbands and that the family home is owned in his sole name.

Some have been told by their husbands that they will have to leave because it is "his house" and some have assumed that they have no security because their name is not on the deeds.

In cases where parties are cohabiting and are not married, that might well be the case but where parties are married, the non-owning spouse (so to speak) has a right of occupation by virtue of the fact that the property is his/her marital home, irrespective of the position as to legal ownership.

There is also something that can be done to protect that right, in the registration of a Home Rights Notice (HRN) against the property with the Land Registry.

This straightforward notice is especially important if the non-owning spouse is going to move out whilst the marital finances are being sorted - perhaps to their parents/friends or into rented accommodation - this is sometimes the case where that person feels that it is impossible to remain under the same roof and try and resolve the marital finances and where their spouse refuses to leave the property because his/her name is on it.

The notice can only be registered against one property (the one that has been used as the marital home) - and if a couple has a property portfolio and some of those other properties are owned in the sole name of one spouse, the other would be best advised to consider registering another form of restriction against those.

The effect of the HRN is to put any prospective buyer on notice that the non-owning spouse has a right of occupation of the property. No buyer is realistically going to want to buy the property subject to the notice and they will ordinarily demand its removal before/on completion of any purchase.

The benefit of this is that it can frustrate the owning spouse selling the property from under the other, non-owning, spouse because they will have notice of any proposed sale when they are approached to remove their notice and, in the normal course of events, will refuse to remove the notice to allow any sale to go ahead unless settlement terms can be agreed.

The owning spouse can object to the notice being entered, if they provide appropriate evidence - for example if they believe that the property was never the matrimonial home.

The Notice can be cancelled on the death of either spouse, pronouncement of Decree Absolute, by the non-owning spouse agreeing to release the rights or by Court Order.

A really useful tool and, having explained it to clients, one that helps sets minds at ease!