How to protect the family home during divorce if you are not the legal owner

How to protect the family home during divorce if you are not the legal owner

When going through a divorce, one of the most critical and often contentious issues to address is the division of financial assets. While all assets should be considered, the family home is typically the most valuable asset at stake. 

This article highlights how you can protect your interest in the family home and the steps to take to safeguard your rights throughout divorce proceedings, especially if you are not the legal owner.

Protecting Your Home Rights: What You Need to Know

Whilst the family home is often a focal point in divorce proceedings, it’s possible to protect your interest even if you aren’t the legal owner.

If you have lived there, you still have legal rights to protect your interest. Understanding how to assert those rights is crucial for ensuring you don’t lose out on your rightful share of the property. 

Matrimonial Home Rights Restriction: Your First Step

If the family home is solely in your spouse's name but you believe you have a beneficial interest in the property (because you’ve contributed to the home in some way, for example), you may be able to register a Matrimonial Home Rights Restriction. This is an important legal measure you can take to assert your claim to the property.

The process for this is as follows:

• You can apply to the Land Registry to register a notice of your home rights.
• The notice will appear on the property's title, alerting any potential buyers or lenders that you have an interest in the property.
• While this doesn’t prevent your spouse from trying to sell or remortgage the home, it often deters potential buyers because they must notify you before proceeding with any transactions.

In simple terms, this notice protects you from any sudden changes to the property’s status during divorce proceedings.

Unilateral Notice: Protect Your Other Financial Interests

If you're worried that your spouse might attempt to sell or remortgage other properties (aside from the family home) before the financial settlement is finalised, you have the legal right to register a unilateral notice.

Here’s what you need to know about this option:

• You don’t need your spouse’s consent to register the notice. However, they will be notified when it’s registered and can challenge it if they wish.
• By registering a unilateral notice, you effectively block your spouse from selling or re-mortgaging the property without informing you first.
• This ensures that you can protect your financial interests during the divorce proceedings.

Freezing Order: Preventing Property Disposals

In some cases, a more severe measure, called a freezing order, may be necessary. This court order is designed to prevent your spouse from selling or disposing of assets, including the family home, until the divorce and financial settlement are complete.

A freezing order is typically granted when there is a strong reason to believe that the other spouse may try to hide or move assets in an effort to reduce their financial responsibility during the divorce.

• How it works: The freezing order restricts your spouse from dealing with or selling assets until a final financial remedy order is made by the court.
• When to apply: You must already have initiated divorce and financial remedy proceedings before you can apply for a freezing order.
• Alternative: In some cases, your spouse’s legal team may propose an “undertaking,” a professional promise not to sell or remortgage the property without your consent, as an alternative to a freezing order.

A freezing order can be a powerful tool, but it’s often a last resort. Our expert family law team will be able to help you determine if it’s the right move for your situation.

The Importance of Registering Your Beneficial Interest

If you're not listed on the title of the family home, it's essential to register your beneficial interest without delay. Taking this step early in the divorce process increases the likelihood that your claim will be taken seriously and improves your chances of a successful outcome in the division of assets.

Whether you’re considering a Matrimonial Home Rights Restriction, a unilateral notice, or a freezing order, it’s essential to take action to ensure your rights are safeguarded throughout the process.