Dividing assets upon separation can be complex, particularly when it comes to your home. Family Associate Solicitor, MaryCarmel Wilson, discusses the different types of home ownership and selling your home after a relationship breakdown.
What are the different types of home ownership couples may have? What rights to the home does this give each party?
There are two ways for a couple to own property;
- A couple owning the property as Joint Tenants. Both parties own the whole of the property. In the event of a death, the property would automatically pass to the other Joint Tenant. Upon separation of either a married or unmarried couple, the property is treated as a joint asset. Where the parties are married the court can alter the shares of how the couple hold the property, this is not the case where the parties are unmarried. Either owner at any point can ‘sever the tenancy’ and become tenants in common.
- A couple owning a property as Tenants in Common. This means that each person can leave their share in the property by way of Will to someone else, or if they have no Will it would pass through the intestacy rules. Upon separation of a married couple, the property would be treated as a joint asset. When an unmarried couple separates, it is important to make enquiries with the Land Registry as to what percentage each party owned and how this was recorded at the point of purchase.
What is an ‘occupation order’ and how can it impact separating couples selling a home?
An Occupation Order is an Order that can be applied for if you are a victim of Domestic Abuse and meet the necessary requirements. If successful with the application, it would allow exclusive occupation at the property.
Regardless of whether or not an occupation order is in place both owners need to consent to a sale taking place.
Is it best to sell a home before or after a divorce or civil partnership dissolution is finalised?
The best option is to seek legal advice before Divorce Proceedings or Dissolution of a Civil Partnership Proceedings are started and before selling property. The usual approach is Proceedings are started and then property sold. It is usually best to agree division of assets and seek advice in relation to this, before exchange of contracts. In the majority of cases, an Order (known as a Consent Order) is obtained from the Court before the sale is concluded.
If the home is in one party’s name but the other party has made financial contributions, are they entitled to any equity of the home?
If the couple are married the property will be treated as a matrimonial asset regardless of whose name it is held in. If unmarried, it depends largely on whether the person making the contributions has done so believing there is a joint intention of joint ownership and the person making the contributions has relied on that intention to their detriment. This is a complicated area of law and if this is a potential problem we would suggest they seek further legal advice.
If separating partners can’t reach an agreement when dealing with equity shares of a house, how can a solicitor help?
A solicitor can help give advice about their clients rights and also give practical advice such as how best to proceed, whether it be to do nothing, start negotiations or engage with mediation or collaborative law or file an application with the Court
Find more information on services our Family department offer here.
