Property and Rights of Occupation

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Frequently Asked Questions about Property and Rights of Occupation

I am not the owner of the Matrimonial home; do I have a right to stay in the property?

If you live in the property, even if you are not the owner, you may have what is known as “Occupational Rights”. Circumstances that would assist your rights would be if you were the main carer for the children and had nowhere else to go. This is a complex area of law and you should contact us immediately if this issue arises.

My husband/wife has a property abroad, can that be taken into account?

It can be regarded as a matrimonial asset. There can be difficulties in agreeing on a value of that property or indeed proving that the other party is even an owner of that property as details will not be held at the Land Registry in England and different countries have different ways of recording property ownership.

We own the property as Joint Tenants, what are the implications of this?

If the property is owned as Joint Tenants rather than Tenants in Common it means that upon death the property automatically transfers to the survivor and that the property is owned in equal shares (although this can be over-ridden by Orders under the Matrimonial Causes Act). Therefore, consideration should be given to changing the tenancy from Joint Tenants to Tenants in Common.

We own the property as Tenants in Common, what are the implications of this?

If the property is owned as Tenants in Common this means that upon death of one of the parties, the interest in the property would be divided according to any Will rather than automatically going to the other owner.

My husband/wife has left the property. Can I be forced to sell the house through the Courts?

If the property is regarded as a matrimonial asset then the court would consider that it is an issue that should be dealt with. Whether you would be forced to sell the house would depend on the individual circumstances of the case but the following would become relevant:

All assets are relevant in any settlement. If you husband/wife does not really have a claim on the property due to other assets that they own, or due to them having a higher income or for another reason then it is unlikely that the house would have to be sold.

If they do have a claim but a payment could be made for their share then a sale would not be required.

If there are no children and the other party did have a claim on the property then the courts may order that the property be sold so that that claim can be met.

If there are children the court would look to preserve the property as a home for children under the age of 18 years unless they could be adequately re-housed in a property appropriate to their needs.

A higher value property is more likely to be sold than a lower value property.

However, each case is different and we would be able to advise you more specifically if this issue arose.

The other difference is that although Joint Tenancy is held in equal shares, a property owned as Tenants in Common can be owned as unequal shares.

The house we are living in is not in my name. Does that make a difference?

In this case the reason why the house is not in your name would become relevant. It may be because it was bought before the marriage and therefore it would have to be decided whether the property is regarded as a matrimonial asset.

When we brought the property we brought in unequal shares and there was an agreement – is that agreement still relevant?

Generally any agreement made will be overridden by the Matrimonial Causes Act 1973 although it is a factor that will be taken into account along with the elements of that Act.

What can I do to protect my interest in the property?

People that may want to protect their interests in a property could include, people that may have a claim on their husband/wife’s property but that are not registered as an owner.

You can protect your interest by registering it with the Land Registry. This will mean that your interest in the property is noted and that it is unlikely that any sale will take place because any purchaser (or their solicitors) will be aware of your interest.

What if I have not protected my interest and the other party is selling the property?

Firstly, you will need to consider making an urgent entry at the Land Registry. If the matter was too far along however for this to be effective you can apply to the court for a “Restraint of Disposition Order”. The Courts will only grant such an Order if they are satisfied that you could not protect your interest at the Land Registry.

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