Question: Our family home was owned outright by my wife before I married her and moved in 10 years ago. Does the property belong to me too? I moved out of our home last month, after my wife told me she wanted a divorce. We have one child, aged eight.
Our Solicitor Replies: When parties separate, all the matrimonial assets will need to be identified and valued before any settlement proposals can be considered. Often the largest asset is the family home and this will fall to be considered irrespective of who legally owns it. The Court has the power to make orders against matrimonial assets regardless of how they are owned and by whom; the overriding concern of the Court is the welfare of your child, and this will be the main factor in determining how the assets are split. Your spouse may argue that the property is non-matrimonial, having been purchased prior to the marriage, but this is unlikely to carry weight given the comments in the leading case of White-v-White. Matrimonial homes will be treated differently.
Even if you are not named as a legal owner of any property on the title deeds (this can be established by your solicitor making enquiries of the Land Registry), you may have acquired a beneficial interest. Further, by virtue of being married, you continue to have a legal right of occupation of your own home.
If you are not a legal owner i.e. your name is not on the title deeds, you should instruct your solicitor to act quickly and register your right to possession of the property and your interest in it by entering a Home Rights Notice at the Land Registry. This will help to protect your interest by making it difficult for your spouse to evict you, sell or remortgage the property. Further information may be obtained from the Land Registry:- http://www.landregistry.gov.uk/public/guides/public-guide-4
If you have been entered on the title deeds during the course of the marriage as a co-owner it is important to ascertain how the title is held by each of you. There are two ways of legally owning property: as joint tenants; or as tenants in common.
What are Joint Tenants?
This form of ownership gives you and your spouse joint and equal ownership of the whole property. This means that your share in the property is not distinguished from that of your spouse and that you must act together in dealing with it i.e. in the event of remortgage or sale.
As your share is not distinct, you are unable to gift your interest under your Will. Your interest will simply pass to your spouse automatically upon death.
What are Tenants in Common?
Under this form of ownership, whilst the property is still jointly owned, you and your spouse have separate and distinct shares. The respective shares can be divided into any proportions which are often determined by monetary contributions.
In direct contrast to owning as joint tenants, tenants in common are able to remortgage or sell their respective shares with consent from the other owners; additionally their respective share will pass in accordance with their Will upon death.
Severing the Joint Tenancy
In the event of separation many spouses do not wish their share to pass automatically to their spouse and there is a simple process to change the ownership to Tenants in Common which your solicitor will guide you through. If you do take this step, please note that it is also imperative to update your will to ensure that the property then passes to your named beneficiaries.