Protecting your home ownership rights during divorce or dissolution

You own your home – either all or part of it – if your name is on a legal document called the title deeds.

Your home might be owned:

• by one of you – which means it’s in one of your names
• jointly, by both of you – there are different forms of joint ownership
• by someone else – for example, a family member.

If your ex-partner (husband, wife or civil partner) owns the family home in their name alone, you might be able to register your interest in it to protect your position.

How you do this depends on where in the UK you live and whether the property is registered.

If your property is registered at the Land Registry – you can protect your position by using a ‘matrimonial home rights notice’ or ‘home rights notice’.

You first  need to know if the property is registered in your partner’s name, and its title number. If it is, check if the property is registered at HM Land RegistryOpens in a new window

Using a home rights notice is free. All you need to do is fill in a form called HR1 at GOV.UKOpens in a new window

If your property isn’t registered with the Land Registry – you can protect your position by applying for a ‘class F land charge’ at GOV.UKOpens in a new window

If the property isn’t the family home, you might be able to register a ‘restriction’ at the Land Registry. You can only protect your right to live in one property at a time.

You can ask HM Land Registry to transfer your home rights to another property owned by your spouse or civil partner if you’ve already got home rights for one property.

When you’ve registered your ‘home rights’, your ex-partner can’t sell the property or apply for a larger mortgage without you being told.

If you want to talk to an adviser from a housing rights charity:

• In England or Wales, contact ShelterOpens in a new window
• In Northern Ireland, contact the Housing Rights Service
• In Scotland, contact Shelter Scotland

You might be able to protect your position by registering a ‘matrimonial charge’Opens in a new window. This means you must be told if the property is to be sold or remortgaged.

You probably need to use a solicitor for this – at least to provide you with a ‘certificate of identity’.

You have the right to live in the property for as long as you’re married or in a civil partnership.

But you will lose this right if you leave the property for two years or more.

Protecting your rights is a complicated area, so it’s a good idea to get advice from a solicitor.

Your solicitor should have advised you about the best way to own your home jointly when you bought it.

There are two options for owning your home jointly:

• Joint tenants – called ‘common owners with a survivorship destination’ in Scotland. This is where you own the property equally between you. When one of you dies, the other inherits their share – regardless of what’s said in their will, if they have one.
• Tenants in common –  called common owners in Scotland. This is where you each own a share in the property. You can split ownership equally between you, or you can decide that one of you will own more than the other. Your share of the property will pass to whoever you leave it to in your will.

If you don’t know how you own your home, it’s worth trying to find out.

Where you do this depends on where in the UK you live.

If your home has been registered with the Land Registry you can do a searchOpens in a new window (which costs £3) at GOV.UK.

If it’s owned as ‘tenants in common’, it will have the words ‘Form A restriction’ next to the ownership information.

If you’re going to sever a joint tenancy, it’s worth considering creating or updating a will stating where your share of the property will go to on your death.

You can find out how your home is ownedOpens in a new window by searching one of the three Land and Property Registries at the NI Direct website. 

You can find out how your home is owned by doing a property search on the Registers of Scotland websiteOpens in a new window

There is a fee for this, which will generally be £3 plus VAT on the Land register or on the Sasine register £30 plus VAT.

Do you own the property as joint tenants (or common owners with a survivorship destination, in Scotland)? If so, you might want to change ownership to tenants in common (or common owners, in Scotland).

The reason to do this is in case you die before the divorce or dissolution is finalised.

If this happened and you owned the property as joint tenants (or common owners with a survivorship destination), your share would automatically pass to your ex-partner.

By changing the way the property is jointly owned, you can prevent this happening.

The process of changing ownership from joint tenants (or common owners with a survivorship destination, in Scotland) to tenants in common (or common owners, in Scotland) varies around the UK.

It’s called ‘severing the joint tenancy’ and is quite straightforward.

You first need to write to your ex-partner and tell them that you want to sever the joint tenancy. They don’t have to agree to you doing this.

If the property is registered with the Land Registry, you can fill in a form called SEV, which you can download from the Land Registry websiteOpens in a new window

You’ll need a solicitor if you want to change ownership from joint tenants to tenants in common.

The process will depend on whether your property is registered with the Land Registry (around 50% of land in Northern Ireland isn’t registered) or Registry of Deeds.

You’ll usually have to get your ex-partner to agree to you changing the tenancy from joint tenants to tenants in common.

You’ll also have to ask a solicitor to draft the new terms of the tenancy, and have this registered on the title of the property.

You need to pay a fee to the Land Registry or Registry of Deeds to change the ownership. A solicitor will also usually charge a fee.

Changing ownership from common owners with a survivorship destination to common owners is complicated.

It’s not something you should try and do without the advice of a family law solicitor.

If your name is on the mortgage, you’re liable for the whole debt – even if it’s a joint mortgage with others.

Contact your mortgage lender to tell them that you and your ex-partner are breaking up.

It’s particularly important to speak to your lender if

• you think you might have problems paying the mortgage, or
• if you’re worried that your ex-partner might not make payments they’ve agreed to.

Your lender might be able to send you copies of statements.

If it’s a joint mortgage, it’s important to also see if you can stop your ex-partner from applying to increase the mortgage.

You might qualify for help with mortgage payments if you’re on certain benefits.