When a couple who are married or in a civil partnership separate, their most valuable asset is often the house. The fact that one or both parties will require to leave the house following separation can cause a great deal of stress.
Does it matter who owns the house?
If title to the house is in joint names its value will be looked at when determining the extent of the matrimonial property (or "partnership property" in the case of civil partnerships) to be divided between them upon divorce/dissolution. The same is true if the house was bought during the marriage but title to the property is in the name of only one of the parties.
If the house was bought prior to the marriage or civil partnership by one of the parties with title taken in their sole name, it will not be included when determining the extent of the property available for division between the couple. The person who owns the property will be entitled to keep it with no account being taken of its value.
There is, however, an exception to this. The value of the property will fall to be divided between the couple if it was bought prior to the marriage or civil partnership for use by the parties as a family home. That is the case even if title is taken in the sole name of one of them and even if the other party made no contribution towards the purchase price of the property. To decide whether or not the property was indeed "purchased for use as a family home", the couple's relationship at the time of purchase will be considered. They do not require to have been engaged at that point. They do, however, require to have been in a committed relationship and the property must have been bought with the intention that they will move in there together as couple (or as a family if they have children).
What if one spouse used money they had prior to marriage/civil partnership to buy the house during the marriage/civil partnership?
If this is the case, the house is still "in the pot" for division but the sums which were not accrued during the marriage/civil partnership and which was invested in the property might be recoverable. The law allows people to argue that they ought to be compensated for spending money which they held previously on assets which then require to be shared by their spouse upon divorce. Similar rules apply if one of the parties spent inherited funds or funds which they were gifted to them alone by a third party on assets during the marriage/civil partnership. The best way to protect yourself is to enter into a pre or post nuptial agreement to ring fence those funds.
Who has the right to stay in the house after separation?
On separation, both parties have the right to stay in the home they occupied at the point of separation ("the matrimonial home") until divorce/dissolution or until there is an agreement that one party will vacate the property. That is the case whether or not the name of both parties is on the title deed to the property or on the lease. It is not therefore the case that the person who owns or rents the property has a better claim to remain in the property than their spouse. Both have an equal right to stay there.
What if my spouse/civil partner is abusive?
If the conduct of one spouse is abusive or threatening it can be possible to have their right to stay in the family home terminated, to allow the other spouse the opportunity of safety. If the perpetrator of the abuse will not leave the property voluntarily, an application may be made to the court to have them excluded from the property. The test for removing someone from their home is high. The court will require to be satisfied that the order sought is necessary for the protection of the applicant or a child of the family, and that it is neither unjustified nor unreasonable.
The fact that the spouses are not getting along or that the relationship between them is awkward will not give rise to someone being excluded from their home. The abuse or threatened abuse can be against the perpetrator's spouse or a child living in the household. The abuse can be physical but need not be. Emotional or verbal abuse can also result in an exclusion order being granted. When determining whether someone ought to be excluded, the court will also consider practical matters such as whether either of the spouses have any alternative accommodation available to them or whether one of them is operating a business from home which cannot easily be relocated elsewhere.
If you are separating from a spouse or partner and are needing advice on any family law matters, please get in touch with one of our divorce lawyers.
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