Property FAQs

In this section we look at some of the most frequently asked questions that divorcing couples have with regard to property and in particular the matrimonial home.

Who gets the matrimonial home after our divorce?

This is probably one of the most commonly asked questions, the answer however is far from black and white.

When considering the division of assets after a marriage ends the whole picture must be considered, the equity held in the matrimonial home is often the single most valuable asset usually followed by pensions.

To begin with the entire financial picture must be clear, what the husband owns what the wife owns and what they own as joint assets, how much they both earn what they may earn in the future the value of pensions, age and number of children, all are factors, the full list can be read in the 1973 marital causes act section 25(1).

Once disclosure is open and full then the needs of the family need to be considered, in fact most financial matters are known as needs cases due to the fact that assets are limited and often don`t exceed basic respective needs of the husband wife and any children they have, in other words there is a finite amount of money that must be shared for the benefit of all concerned.

What is true in most cases is that the needs of any children under the age of 18 is usually the first and most important issue to decide, housing being the first of those needs.

Can they force me out of the house before the finances are sorted out?

When two people get married and live together their home is known as the marital home, it does not matter who`s name is registered on the title deed, or how the home was funded, it is the marital home, as such both have the right to live in that property despite the wishes of one spouse.

There are there ways a spouse can be made to leave the marital home.

1. Court order, this usually only happens after a process known as ancillary relief, this is a long process and often can take a year or more if fully contested, this court order is based on what a judge thinks is the best solution for the family.
   
   
2. The police direct one spouse to leave, very often this follows a dispute police officers are called too and often is only a temporary direction, a night maybe more but its aim is to allow a situation that became heated to cool down.
   
   
3. Occupation orders, this is an order made by a judge and enforced by the police if need be.

If a spouse makes an application to court (FL401) a judge will hear the reasons why one person should be made to leave the marital home, they are more commonly called non molest orders, as the name suggests they are used to stop domestic violence or the fear of it though the law covering this issue is wide ranging from verbal abuse or controlling behaviour to child abuse, often these applications are heard without the errant spouse being aware of it known as an ex parte hearing.

The level of proof required is quite subjective mainly due to the fact you cannot prove some one fears their spouse, or if  a threat was made for example.

Very often a judge will make the order and list another hearing where the accused attends and is asked to make a promise to the judge to leave the marital home usually for a fixed amount of time, perhaps six months maybe a year though the orders can be without end, if the promise is made (known as an undertaking) nothing more happens, it should be noted that these orders are enforced by police officers and if the promise is broken it often ends in arrest and can lead to imprisonment.

Very often legal advice is not to move from the marital home because it can in some circumstances effect a potential financial claim, for example if one spouse moves to say a rented flat agrees a lease and lets say lives there for a couple of years, it could be said that their housing needs are now met, the capital housing need is often the greatest need in terms of cash from the marital pot.

I want to transfer the property to my spouse but they cannot afford to pay the mortgage. What do I do?

For many reasons this is a common issue facing divorcing couples, often one spouse has a higher income and the other has taken a step back in their career to raise children.

The first port of call should be a full benefits check to see what assistance is available, often the citizens advice bureau (CAB) is best placed to help, it is wise to make an appointment with a benefits adviser first rather than just turn up.   

Once you have all the numbers, ie what is available to the party staying in the marital home in terms of income the non-resident spouse can contribute equal to the monthly shortfall, this is known as spousal maintenance.

If the non-resident spouse cannot afford to contribute then the house must be sold unless the lender agrees new terms to reduce the monthly payment.

There are two very important issues to understand with this issue:

1. If the house is transferred is it final, will the other party have any future claim against the house?
   
   
2. Will the lender release me from the mortgage? 

When a house is transferred a form is completed called a TR1 which is used to change the title deed from two names to one, the title deed says who actually owns the property, firstly you must ask the lender if they will block such a transfer, in many cases they can and there is nothing that can be done about this, even a judge cannot prevent this which often leads to complicated problems, assuming the property is mortgage free or the lender will not block the transfer you must absolutely make sure that the transaction is written into a consent order and sealed (stamped) by a judge in court, only with a consent order is it truly owned by a single party  without the possibility of a future claim.

A mortgage lender has whats called a first charge against a property, meaning it really belongs to the lender until the mortgage is paid in full, very often the lender will be reluctant to release one person from the mortgage even if on paper the proposed remaining spouse can pay the monthly payment.

The golden rule is always ask the lender, if I transfer the house will you release me from the mortgage, far too often people transfer property only to find the lender will not release them, always ask first.

What is a marital home rights notice?

Land registry keep records of who owns all property (the title deed) a notice can be registered on the title deed to prevent a property being sold or a loan raised against the property (second charge) without the permission of both owners, this is called a marital home rights notice, it is a common misconception that a property with a marital home rights notice cannot be sold, it can, but it means the new owner cannot live in that property or rent it out until the owners have agreed a division of the equity or court order a division.

The application is made by completing a land registry form (FM1) and it is standard practice when a married couple decide to divorce or no longer live together, as such its nothing to worry about.

A spouse who will remain resident in the marital home has no need to register a notice, its the non-resident that does.

Even if a non-resident spouse is not listed as an owner on the title deed s/he can still add the notice, this is because the property is the marital home which gives both people a claim under the 1973 marital causes act.

My ex wants to keep the house with my name on the mortgage will this stop me buying another house?

The short answer is no, in fact statistically many men end up in this situation post divorce, all lenders have their own rules when deciding who can have a mortgage.

What is important to the lender is;

• The ability to pay the mortgage
  
  
• The credit check on the applicant

Providing you meet the criteria of the lender a mortgage will be offered.

It is always worth shopping around, in fact some lenders have specific mortgage products for people who remain bound to another mortgage.

My ex wants to keep the house i want to sell it - can i force it to be sold?

No, there are two ways a house can be sold;

1. By consent of both parties,

2. By order of court,

If you can`t agree if the house should be sold or if one person should remain in the property then one of you needs to apply to court to have a judge help decide or ultimately order what should happen.

The application (form A) is called an application for a financial order or remedy, once made it starts a formal process with court to gain full disclosure from both and to have hearings in court with a District Judge to help find a solution.

A Judge will only decide what should happen after all avenues are exhausted, the Judge will only make this decision after a final hearing, the decision is known as handing down judgement.

This should be avoided,more often than not there is no "winner", often both parties leave not really happy with the outcome, the cost stress and time it takes can take a terrible toll on both people, the Judges decision can be appealed but only for specific reasons and within certain time limits, successful appeals are far from common, and if you do appeal and lose to will probably face paying the legal costs of the other side.

What is an occupation order?

An occupation order is an order made by a Judge or a Magistrate ordering one spouse to leave the marital home and not return until the order is removed by consent or a further order of court, to do so will almost certainly result in arrest, to break the terms of the order more than once or to cause a disturbance will often result in being held until Magistrates can hear the matter, depending on what happened the Magistrates have the option of referring the matter to crown court.

In simple terms to break the terms of the order can lead to imprisonment, if an order is made do as the order says, there are no reasons or exceptions that are acceptable breaking the terms of the order.

Very often these orders are made on an emergency basis, the person subject to the order will very often not be aware of the hearing to ask for the order, if the order is made it is served to the person being ordered to move out, this service is by hand often a court bailiff.

These orders almost always go hand in hand with a non-molest order, both more often than not come with the power of arrest.

If you believe the order is unfair you can ask a full hearing be listed (trial) to put across your side, because proof is not actually needed it tends to be quite subjective, very often the court will accept a promise  to stay away from the marital home, this is called an undertaking, if you make the promise you must at all costs keep it, to break the promise will lead to a full order with costs of the application paid by you.

What is a non-molestation order?

This is an order made usually by a District Judge ordering one spouse not to molest or harass the other spouse, the orders can be quite specific so for example the order may state the spouse subject to the order not contact the other spouse unless done so through a solicitor or a designated third party.

A non-molest  order almost always  goes along with an occupation order if the couple still live together.

These orders do not mean you have necessarily have committed an offence, they are often used to prevent one, or a breach of the peace, even to releave the stress of one party, no proof as such is required in order to have an order, this is because you cannot proof if a person feels threatened, it is just that a feeling, very often these orders are made following police attendance even if no action was taken following the event.

Very often court will accept an undertaking or promise to comply with the terms of the order, if the offer is made its wise to accept it, you are not admitting to any molestation just that you wont molest or harass the person who asked for the order, these orders do not form a criminal record though they will show if a CRB check is made and you refused the undertaking deciding to have a full hearing.

When a person makes application for a non-molest order they are often heard in court with only the applicant present, these are called ex-parte hearings, or without notice in plain English.

If an undertaking is not offered or refused if ordered the applicant can ask for their costs in making the application if using a solicitor, if the respondent can afford to meet those costs very often the judge will order they pay, if however you accept an undertaking you will probably not be made to pay costs.

Can i change the locks on the house?

There is no easy answer to this question sadly.

If you have an occupation order the answer is yes you can.

If you were married only for a short time have no children together and the house is in your own name yes you can.

There are a few exceptions to the above but they are few and far between.

Often even the police will say this is a civil matter to be decided by court, and for the most part it is unless an order from court is in place or an offence is committed.

In law there is  balance to the right to enter the marital home when you no longer live there and the right of the resident spouse to a quiet life, this is underpinned by article 8 of the human rights act which says all have the right to quiet enjoyment of their own home.

Owning a house does not make it your home in just the same way as if your were to rent out a property, once rented you could not just enter when and if you feel like it.

Generally the longer you no longer live in the marital home the less right you have to access the property without the permission of the resident spouse, after 6 months or more your right to enter reduces to the point you have no right to enter without permission.

Many people ask can they break into a house they own or part own even though they no longer live there, again there is no black and white answer, if you move out on Friday returning Saturday to find the locks are changed then yes you could break in, though its very unwise, and you must make good any damage after the event, what you must never do under any circumstances is break into an occupied property, this would cause great distress and will involve the police, this leads to a civil injunction or a none molest and occupation order.

If you need to enter the property its always best to do it by agreement.

I need to return to the house to collect my things but my ex wont let me, what can i do?

By far the simplest way to deal with this is to call the police and tell them you need to collect some personnel belongings from the marital home, but your ex refuses to allow you, usually an officer will be made available by appointment and will attend the marital home with you in order to prevent a breach of the peace.

Other options include having a mutual friend collect what you need by agreement or even paying for a taxi to collect the items, probably the most expensive option is to ask court to decide, the outcome can be very unpredictable, if you need to collect items of a medical nature or tools or items needed to earn a living they are more or less a given, if its fishing rods much less so.

The police tend to offer the method of least resistance.