Family Law: questions & answers

We were inundated with your questions relating to divorce, separation, family homes and division of other assets. Let’s answer some of them:

  1. Do I have the right to stay at our family home, we do not have children, and the house is registered in my husband’s name?

If you have no children and you are safe staying in your family home, agree with your husband the arrangements that you will be putting in place when you are able to. If your relationship broken down, but you are willing and able to stay in the family home- do not leave! You will have the right (Home right) to stay in the family home, but much depends on whether your rights are registered.

  • What are home rights?

The law states that if one spouse owns the family home and the other spouse does not, the spouse who does not own the family home has home rights. These home rights include the right to live in the family home and not be made to leave from the family home, unless there is an occupation order stating that you must leave. An occupation order is an order which sets out who can live in the family home, or who can enter which parts of the family home.

  • Why do I need to register my home rights?

By registering, your home rights will be on the legal documents for the home (title document).  This means that other people and organisations such as the Land Registry, banks and people who want to buy the property will know that you have home rights.  It also means that your spouse cannot sell or mortgage the property without you knowing about it. If you do not register your home rights then your spouse could sell or mortgage your home without you knowing about it.  This may mean that you have to leave the property. It may also restrict your claims for finances on divorce.

  • Do I need my spouse’s consent to register Home rights?

No.  Your spouse will not be asked to provide consent when you register your home rights.

  1. I know that my spouse has other properties, in addition to our family home. What can I do to stop him or her selling/transferring the properties to third parties (family members)

If you think that your spouse is going to sell or mortgage other properties then there are things you can do to stop this happening.  You should speak to us urgently about putting a restriction on the property or getting an injunction to stop your spouse from selling the property. Moreover, if any properties were transferred into third party names, and the Court decides this was done intentionally to hide the assets, it can order reverse of the transfer and inclusion of such properties into family assets to be divided.

  1. My husband and I decided to separate and apply for divorce. Though this decision was mutual, we are not agreeing on what should be included in the ‘matrimonial assets’ to be divided. Are there rules governing what is and what is not considered a ‘matrimonial asset’?

Yes, indeed, there are rules that govern identification of ‘matrimonial assets’. Your matrimonial property is any property or assets owned by either you or your spouse individually or jointly. This can be:

  • your matrimonial home (where you and your spouse lived or still live);
  • any other property owned by you and/or your spouse;
  • the contents of your matrimonial home and your car;
  • any savings;
  • life assurance policies;
  • stocks, shares or bonds;
  • any pensions;
  • any family business;
  • the court can also look at debts owed by either you or your spouse during your marriage.
  1. My husband agreed to pay me 50% of the sale proceeds once his investment property is sold. I do not trust him. How can I ensure he does pay me the agreed amount?

If you do not trust your husband, I would advise to include this into your consent order (order made by the court and based on your agreement). I would also advise you to register a restriction against the property title to put all other third parties on notice that you have the rights in the property. Other orders the court can make:

  • a transferring property into your name or your spouse’s sole name;
  • transferring a tenancy into your name or your spouse’s name;
  • placing a legal charge over property or other assets in favour of you or your spouse;
  • ordering that a property is sold and the proceeds of sale are divided between you;
  • payment of a lump sum to you or your spouse;
  • varying your pension or your spouse’s pension so that you or your spouse benefit from it; and
  • ordering you or your spouse to pay maintenance to the other.