If the house isn’t in your name, do you still have rights to it?

If you’re married, the family home is viewed by the Court as a special asset that is central to the marriage. This means that there must be a good reason (as set out in categories within the main divorce legislation) as to why the family home should not be divided equally when you divorce. 

The belief that one person is to blame for the end of a marriage is rarely a sufficient reason to persuade a Judge that a family home should not be divided equally between both parties. Behaviour or conduct, as it is referred to legally, should have a “gasp” factor. The Court will take the view that few people behave well when a marriage breaks down and that behaviour, however hurtful and unjust it may seem, is largely irrelevant when it comes to how property and money should be divided in a divorce.

Matrimonial property

A property being owned by one individual usually arises because:

• One of the parties owned the house before the marriage, or;
• For financial reasons. For example, when the house was bought you may have been advised that it had to be registered in just one person’s name – perhaps one of you had a poor credit rating and the mortgage lender wouldn’t agree to offer that person a mortgage.

If one of you owned the house for many years before you lived together or married, this doesn’t mean that the house it is not a matrimonial asset. If your marriage was very short (less than two or three years) a Judge is likely to give you some credit for the fact that you owned the house before marriage. However, if there are children living with you, the need to provide them with a home is prioritised over any arguments about what each of you contributed to the marriage. If you have been married for 25 years, a Judge is likely to say any contribution made by you before the marriage is water under the bridge.

If the house is owned by you and you have always paid the mortgage from an account in your name, whilst the other person paid for food, clothing, holidays etc. this doesn’t mean that the other party isn’t entitled to a share of the house. Each person has contributed to the marriage in different ways.

Practical issues

There are a couple of practical issues that arise from one of you owning the house if you are married: 

• The mortgage lender will take the view that the individual who signed for the mortgage is responsible for paying it – regardless of whether they are living in the house. If this person stops paying the mortgage and you are living in the house, you may need a maintenance order to help you with the payments so that the house is not repossessed.    
• The person who owns the house can try to sell it without the other’s permission – unless a right of occupation is registered at the Land Registry.

If you are divorcing or separating and you are looking for advice, please contact our Family Law team for a confidential discussion on 0113 201 4902 or email family.law@emsleys.co.uk.