Protecting Your Property Upon Divorce

Although all assets should be considered upon a divorce, often the most important and valuable asset is the family home.  Even though it may have been the family home for many years, we consider below what happens when one party is not a legal owner and what steps can be taken to protect their beneficial interest during divorce. There are three main courses of action which can be pursued:

1. Home Rights Registration

If the family home is held solely in your spouse’s name, you can apply to the Land Registry to register your home rights.  This applies only in relation to the family home, and not any other properties your spouse may own.

Once registered, the home rights notice will appear on the title to the property ensuring that any purchaser or lender will be bound by it.  This gives you the right to enter and occupy the property.  Whilst this does not prevent your spouse from trying to sell or re-mortgage the property, you will be notified and the presence of this notice makes purchasing the property an unattractive option.

The protection of home rights is lost when Decree Absolute has been pronounced, finalising your divorce, and so careful consideration needs to be given as to when you apply for this, especially if financial matters have not yet been resolved.  In certain circumstances, home rights can be extended after the divorce although you will need to apply to the Court for a continuation order.  The Court will consider:

a. The housing needs and resources of both you and your spouse, as well as any children.

b. The financial resources of you and your spouse.

c. The likely effect of any order, including a decision by the court not to make an order, on the health, safety and well-being of both you, your spouse and any children.

d. The conduct of you and your partner.

2. Unilateral Notice

If your spouse has multiple properties and you are concerned that they may try to mortgage or sell these prior to the conclusion of any financial settlement, you can register a unilateral notice.  You will need to provide details about your interest in the property; usually, the fact that there are ongoing divorce proceedings will provide sufficient grounds.

This can be done without the consent of your spouse, although they will be notified of the registration of the notice and have the ability to apply for it to be cancelled.

The registration of a unilateral notice prevents the sale or mortgage of the property without notifying the person named in the notice.  This enables you to retain control and protect the property(s) throughout the proceedings.

3. Freezing Order

Finally, if you believe there is a risk that your spouse will try to sell property and dispose of the sale proceeds to limit your claims on divorce,  you can apply for a freezing order which is a type of injunction.  These types of orders restrain a party from disposing or dealing with an asset until a specific time or event.  You would however need to have commenced divorce and financial remedy proceedings to make this application.

Often when an application for a freezing order is made, the other party may offer an undertaking instead.  Undertakings are legally binding promises that the party will not mortgage or sell the property, however they do not appear on the title of the property so do not have the same effect on third parties.  The benefit of undertakings is that they are more flexible and can include provisions a court cannot order, such as regulating the conduct of the parties in relation to prospective tenants of a property.

It is important that your interest is registered as soon as possible if you are not named on the title of the property.  At IBB we are able to advise you on your rights upon separation, whether married or cohabiting.

Speak to our Family Law Experts

Yasmin Kibble is a solicitor within the family team and can be contacted on 01895 207 834 or yasmin.kibble@ibblaw.co.uk.