You should take legal advice in these circumstances. Matrimonial home rights will not be open to you, but you may still be able to protect yourself by registering a notice or restriction with the Land Registry against the property, depending on the circumstances.
What if I am concerned that my spouse or partner may be trying to sell a property without my consent? If the property is registered in both of your names, you should contact the conveyancing solicitor immediately, and explain your situation. If you are worried that your spouse or partner, whether you are married or not, may be trying to sell the property in which you live, or have an interest in you should speak to a specialist family lawyer as a matter of urgency.
You may have found out that they have marketed the property with an estate agent or even that exchange is looming. You need to move quickly! The property in this case may not necessarily be your family home — it could be an investment property or holiday home. To prevent your partner from dealing with the property you may need a restriction, which will be entered with the Land Registry. This will ensure that your written consent must be obtained before your spouse or anyone else sells the property or otherwise tries to dispose of it.
Usually the registered owner of the property must give their written consent to a restriction being entered. Our family lawyers are experienced in detailing with these issues and will be happy to guide you through the process.
Once you have reached an agreement with your spouse or partner that the property is to be sold, any matrimonial home rights, restrictions or notices will need to be removed from the Land Register to allow the transaction to proceed. This is very simple and your lawyer can attend to this by sending off the necessary forms. The spouse would have to file an urgent request with a judge. This request is connected to the application for divorce she either filed or received. In other words, the spouse asks the judge to stay in the home and to temporarily take this right away from the other spouse, even if the other spouse owns the home.
It can take a few days or even a few weeks to get this judgment. The judge considers these factors when deciding who stays in the home and who must leave:. The exclusive right to live in the home is closely tied to the custody of the children.
The spouse who has custody has a much better chance of staying in the home. A spouse who has been forced out without authorization can ask a judge to be allowed back in and force the other spouse to leave. If granted, their former spouse would be in breach of the order if they stayed in the home and is therefore legally required to leave and live elsewhere.
In the case of domestic violence, this order can also be sought under the Domestic and Family Violence Protection Act in the Magistrates Court. When determining an application for an occupancy order, the court will make their decision based on two points:. This means determining whether or not it is reasonable, sensible or practical to expect the parties to remain living in the one home. As part of this, the court will also decide whether the order is necessary or whether it is simply being made for convenience.
A ccess to the marital home during separation may be an important requirement for certain people and less important for others. An occupancy order is granted when the needs of the applicant are judged to be clearly greater than those of the other party. The applicant, once successful, is able to live in the house without their spouse until the property has been divided in the finalisation of a divorce.
Former partners might eventually be able to decide who is leaving the home without the intervention of the court. For the person leaving, their entitlement to a share of the property during divorce proceedings will not be affected.
If your spouse is abusive or if you fear abuse or violence, it is important to seek advice immediately. In terms of exclusive occupation orders, it is highly likely the court will grant an applicant their occupancy order if their partner is making threats against them, especially if any children are affected.
As it is a crime, domestic abuse is dealt with in the Magistrates Court. This includes occupancy orders that involve violent or threatening situations. However, the Family Court and the Federal Circuit Court will manage other aspects of separation and divorce. An Apprehended Violence Order AVO can be made against a spouse or former spouse to protect you from violence, harassment and intimidation.
There may often be open hostility between ex-partners, and this can build up further and further if both people cannot agree on who should leave and who should stay in the matrimonial home. This type of conflict, whether it is explicit or conveyed more through silence and coldness, can have a serious impact on children in the household.
Young children in particular are less able to understand the situation, and they can quickly feel the emotional stress. Trying to come to an agreement about who should leave the home is often complicated because of children of the relationship.
A lack of agreement on child custody after separation and in the process of a divorce will often mean going to court to settle that issue as well.
This is where you agree between yourselves the arrangements for your children and any assets such as your house in the event of your relationship breaking down, and how you will maintain this agreement after your separation.
You will need legal advice as to what is needed in a separation agreement. Find out more about separation agreements here , how legally binding they are here , and how to maintain or vary your separation agreement here. However, it can still be difficult to decide who keeps the tenancy and stays in the property.
This means that in the short term, both of you have a right to live there, neither can force the other to leave, and both of you can return if you temporarily left the home.
Between you, you must ensure the rent is paid by either or both of you. Not paying the rent could result in eviction by your landlord and could contribute to a poor credit rating for both of you.
If you agree that one of you is to keep the tenancy in the rented home, you could assign the tenancy transfer it to one of you if both your tenancy agreement and landlord allow it. You can find out more about this on the Citizens Advice Bureau here.
Some couples are able to come to an agreement over whether one person should buy the house or stay in the house whilst others have the court decide for them. You can both come to a reasonable agreement, depending on other aspects of your joint finances such as savings and investments. This is particularly beneficial when kids are involved. Retaining the family home can help the children to achieve some stability despite their parents separating.
After this, the home can be sold and the proceeds divided. However, it is also important to remember that property markets can be unpredictable. If you wish to sell the family home and doing so would be in the interest of both parties, you can force the sale of your house. To do this, you will need to apply for a court order to permit the sale of the house and provide a timeframe during which it should be sold. Many factors are taken into consideration before the court will enforce an order of sale.
These include:. Due to the financial burden of moving, many divorced couples and those who have dissolved their civil partnership continue living together as they transition into being officially apart. A same sex civil partnership cannot be dissolved on the grounds of adultery.
0コメント