https://hmlandregistry.blog.gov.uk/2015/08/18/what-happens-to-the-family-home-in-the-event-of-a-divorce/

What happens to the family home in the event of a divorce?

Divorce

The top three questions we receive from members of the public about changes in home ownership are in instances of:

  • death;
  • marriage; and
  • divorce.

We have already written about what to do when a property owner dies and transferring sole ownership to joint ownership (for example, when you get married), so in this blog we’ll focus on how divorce may affect your most valuable asset, your home.

Property will often be central to a divorce settlement, though what happens to an existing home will depend on the divorcing couple.

Dividing assets

Identifying and valuing all assets is part of the process of working out what there is to divide. The home and any other properties will be included in this, regardless of whose name the property is in.

Buying your partner out

Whatever is decided is unique to every situation, but often one spouse buys the other out and keeps the house. This means that the owners have to transfer ownership from joint names to a sole name.

If you have a mortgage, you would need to involve the lender in the process and in some cases may need their consent or action to switch the mortgage from joint to a sole name. Lenders will usually insist you use a solicitor to complete the changes.

Selling the property

Another possibility is that the property has to be sold and the proceeds divided between you. HM Land Registry doesn’t get involved in valuing a property. If a couple can’t agree upon a value, you may need to obtain a report from a local estate agent or surveyor giving a market valuation.

Right of occupation

If your spouse or civil partner is the sole owner of your home, you can protect your right to live there by registering a notice of home rights. There is no fee for this. It is particularly important to do this if you think they might sell or mortgage your home without telling you. We must tell your spouse or civil partner that you have made the application. NB A notice of home rights doesn’t protect any financial stake you may have in a property – you may want to seek legal advice if you wish to do this.

If your home is unregistered, you can protect your right by registering a ‘Class F land charge’.

Cancelling rights to live in the matrimonial or civil partnership home

Your right to occupy the home may come to an end by:

  • divorce or annulment of your marriage;
  • dissolution or nullity of your civil partnership;
  • death of your spouse or civil partner;
  • order of the court; or
  • release in writing by the person who has registered the notice.

When the rights come to an end, you should cancel the entry protecting your rights. If your home is registered you can apply to cancel the notice by using form HR4 (there's no fee to do this).

For more information see: Staying in your partner's property during a divorce or separation

74 comments

  1. Comment by Chicksa posted on

    I have foreign divorce on my hands and want to lift the notice that my ex-spouse had registered on my pre-marital property. Land registry wants to prove validity of the overseas divorce. How will you do that?

    Reply
    • Replies to Chicksa>

      Comment by adamh posted on

      Chicksa - it is for you to demonstrate that the divorce is legal by submitting sufficient evidence to support the application.
      So if there were divorce proceedings overseas we need evidence of that

      Reply
      • Replies to adamh>

        Comment by Chicksa posted on

        Thank you Adam. Will apostile translated court decision be enough? Or more in depth transcripts are required?

        Reply
        • Replies to Chicksa>

          Comment by adamh posted on

          Chicksa - we won't know until you submit the application I'm afraid as we would view the whole thing on merit.
          If you have evidence that when translated demonstrates that the divorce has taken place and that it would be recognised under English law then it should be fine.
          In depth transcripts may be needed but that depends on the level of detail provided in the apostile translated court decision I suspect.

          Reply
  2. Comment by Joanne Paladina posted on

    Legal titles of matrimonial home is in both our names( myself and ex spouse)
    There is a restriction attached( Declaration of Trust for myself ,my ex spouse and our daughter as beneficial joint tenants. Trust was created when my daughter was 15, hence the trust.)

    After divorce,the court ordered that ex spouse share of the home to be transferred to me, meaning:
    my share: daughter is 2/3 :1/3

    Judge says if ex spouse refuse to transfer, the court will sign the necessary papers to effect the transfer.

    What are the application forms necessary for the transfer?
    ( bearing in mind that the previous restriction requires removal)

    Thank You.
    ( advice very much appreciated)

    Reply
  3. Comment by Rach posted on

    In 2011 I seperated from my husband and divorced in 2012 who had a mortgage in his sole name. The title to the property is in his name, he died in August this year and his daughter lives in the house. There is an interim charging order to MBNA on this property.

    My questions are: do I still have rights to my former home, can I live there as since divorce me and his children have been in rented accommodation? Am I now responsible for any mortgage outstanding etc

    What is my next step?

    Reply
    • Replies to Rach>

      Comment by adamh posted on

      Rach - I'm afraid we cannot answer any of those questions for you and you would need legal advice to understand what rights you have
      From purely a registration perspective the rights afforded to a spouse, as explained in this article, end with divorce so would not apply in your situation.

      In my experience issues around the home and mortgage are resolved at the time of the divorce. What happens later re a death and the children though is not an area we deal with. If legal advice is not an option you could try online forums such as Money Saving Expert or Mumsnet for example to see if anyone can share any thoughts from their own experiences/understanding

      Reply
  4. Comment by kate posted on

    I am in the process of buying a house. However, it has come to light that there is a notice of rights that was applied by the previous owners of the current vendors over 30 years ago. This wasn't removed by the current owners, and now my solicitor has advised that this has to be removed before we can purchase it. We were due to exchange and complete next week, is there any way this can still happen? I.e. can we get this removed after the purchase has completed?

    Reply
    • Replies to kate>

      Comment by adamh posted on

      Kate - all depends on the circumstances and what the notice of rights is seeking to protect. If it is no longer a valid interest then removing it may be quite straightforward although it may also mean we need to write to the protected party to confirm.
      Your solicitor should be able to advise as the devil will be in the detail re the entry and what it is seeking to protect

      Reply
      • Replies to adamh>

        Comment by kate posted on

        Thank you so much for your prompt response. As far as I know, the couple were going through a divorce, so it was to ensure that the house couldn't be sold without both parties consent. So in my opinion, as the house was sold by the couple over 30 years ago, it should now be invalid? Our solicitor hasn't been most helpful after we complained about the lack of action and communication some weeks ago, so I get the feeling she isn't bothered if we don't complete on specified date. She has requested that the seller's provide a decree absolute from the courts for the previous couple, and fill in an hr4 form. Is there any quicker solution?

        Reply
        • Replies to kate>

          Comment by adamh posted on

          Kate - if it's a Matrimonial Homes Right Notice then HR4 and a copy of the decree absolute is the way to go here. If they have long since moved on that is probably the quickest way of getting a copy of the decree absolute and we need that as proof that the divorce has happened so the rights are no longer valid.

          Odd that the seller had not sorted this as odd to have moved in when someone still had a right to live there as well but perhaps they thought their solicitor had dealt with it as well

          Reply
  5. Comment by legalsimon posted on

    Hi my friend had joint ownership of the matrimonial home with his wife. They divorced 5 years ago and she agreed in the Divorce Petition to give up her beneficial rights to the home.

    His solicitors did not alter the land registry. It has now come to light that she is still on the official copies as a registered proprietor and as a party on mortgage deed. He now wants to sell the house and her whereabouts are unknown.

    Any suggestions? Thank you

    Reply
    • Replies to legalsimon>

      Comment by adamh posted on

      legalsimon - she will need to be traced and then be a party to the Transfer (sale) deed.
      There are circumstances where a judge can get involved if someone is missing presumed dead for example but it reads as if that is a point not yet reached.

      Reply
      • Replies to adamh>

        Comment by legalsimon posted on

        thank you for your kind help.

        Reply
  6. Comment by Damian McCoy posted on

    Hello I am divorced and as part of my financial separation I agreed to a charge on my former property. I am now in the process of purchasing another property to live in, but have been advised that I may be subject to capital gains tax, also increased stamp duty as a second home. I am struggling to find an answer on this. Does anyone know?

    Reply
    • Replies to Damian McCoy>

      Comment by adamh posted on

      Damian - this won't be something we are involved in so we cannot advise.
      I would suggest making wider enquiries online such as on Money Saving Expert's public forum where such matters are often discussed.
      Although there are lots of comments on this blog it is not used as a forum so it is very unlikely that others will offer comment I'm afraid.

      Reply
  7. Comment by Ian posted on

    Becca - To some extent what happens depends on the circumstances of each case, but generally speaking these rights only continue during the subsistence of the marriage unless continued by order of court.

    Please use our 'contact us' form http://landregistry.custhelp.com/app/contactus_general/ to give details of the property and we'll look into this and get back to you.

    Reply
  8. Comment by JBaller posted on

    Could you please advise whether someone is obligated to sign an HR4 form relating to the property of a now ex spouse or whether it is simply for that party, as sole owner, to provide proof of the divorce by way of decree absolute etc, thus removing the need for the divorced parties to come into contact?

    Reply
    • Replies to JBaller>

      Comment by adamh posted on

      J Baller - getting the ex spouse to sign a release is just one of the available options. It is not compulsory so I would suggest using one of the other options on the form as appropriate

      Reply
  9. Comment by jen posted on

    Hi,
    my parents divorced over 20 years ago, dad agreed to sign the house over to mum, papers were drawn up, but mum never got around to filing them. Mum passed away and left the house to me & my brother but dad is claiming the house as his. Is he within his rights as his name was never legally removed from the deeds, but he had nothing to do with the house for over 20 years.

    Reply
    • Replies to jen>

      Comment by adamh posted on

      Jen - one to discuss with a solicitor I'm afraid as we cannot advise you on the law on such matters.
      The key is likely to be what the papers you refer to are and whether they constitute a legal transfer of the ownership and can now be registered. A legal Transfer would be a legal deed executed and dated by them for example but that si where the solicitor's advice would come in

      Reply
  10. Comment by tasie posted on

    How long does it take to process a home rights notice once someone has made an application?

    Reply
    • Replies to tasie>

      Comment by Ian posted on

      Tasie - If the application is in order our standard time for completion of applications is 5 weeks, but these types of application are usually completed quicker than that. There may be a delay if we need to query something with the applicant or the solicitor lodging the application on their behalf, in which case we won't be able to complete it until that point/issue has been resolved.

      Reply
  11. Comment by Ian posted on

    Tasie - Please see our guidance which gives more detailed background on the protection if these rights - https://www.gov.uk/government/publications/applications-under-the-family-law-act-1996 . The guide is written for the legal profession and may therefore contain some unfamiliar legal terms. Section 7 refers to when the rights may be brought to an end, but it's best to get some independent legal advice from Citizen's Advice or a conveyancer, such as a solicitor, on how the law applies in your case.

    Reply
  12. Comment by Al-Khan posted on

    I'm divorcing and the marital home is in my spouse name. I registered my
    home rights at the land registry. However, I do not want to apply for beneficial interests. If I cancel my home rights before
    the divorce decree absolute, will anyway the property be included in the
    evaluation of all assets? thank you

    Reply
    • Replies to Al-Khan>

      Comment by adamh posted on

      Al-Khan - you will need legal advice on that aspect I'm afraid. We can only advise on how to register the Notice and/or remove it. We are not involved in the specifics of the divorce and evaluation of assets.

      Reply
  13. Comment by Alice Smith posted on

    I am currently in the process of divorcing and I would like to sell my house and then divide the earnings between my spouse and I. I just want to get my divorce over with though and I was wondering if you have an opinion of which way is best for divorce, and also affordable. I want to do an online divorce with Thistoo ( http://www.thistoo.co for reference) but i don't know how well online divorces handle finances. Your opinion would be greatly appreciated! Thank you

    Reply
    • Replies to Alice Smith>

      Comment by adamh posted on

      Alice - we can't advice on the divorce process itself so if you are looking for wider online advice then I would suggest trying forums such as Money Saving Expert and Mumsnet

      Reply
  14. Comment by Pamela Birch posted on

    We have a problem with my mum's ex husband. They divorced 8 years ago with my mum keeping the house. She has now died but when we are selling the property the home rights were not removed by her ex. After letters to ex with no response we are stuck in limbo not able to sell property. Can the home rights be removed without his signature because he will never sign can we use rx3 to do this. We have now found out he has said he will not sign the papers.

    Reply
  15. Comment by Kim Edwards posted on

    How long does it take to remove home rights notice? FORM HR4 has been signed and sent to.solicitor and hopefully land registry. Urgent as meant to exchange and complete on house by next week.

    Reply
    • Replies to Kim Edwards>

      Comment by adamh posted on

      Kim - the average is 6/7 working days currently. That timescale can be extended by 15 working days or more if we have to serve notice on the spouse. We tend to only serve notice if the cancellation is based on a signed release. In cases where the marriage has been anulled no notice is served

      Reply
  16. Comment by Jenny posted on

    my ex husband and I have been divorced for 5 years now, I stayed in the marital home and he kept his ISA, pension etc, all very amicable. we understand that we cant just take his name off the mortgage and I cant afford to buy him out so we want to change from joint tenants to tenants in common and register a 95% to 5% with me holding the larger share, we know we can change from joint tenants through the land registry but can we arrange a different split than 50 50 just through the land registry?

    Reply
  17. Comment by Viola Gordon posted on

    I am the respondent in my divorce proceedings. The petitioner registered my property of 10 years as the marital home at land registry. We now have the Decree Nisi, just waiting for the Decree Absolute. Can I apply to have the charge removed, with the Decree Nisi, even though the petitioner lodged it? His name is not on the mortgage. Can you help?

    Reply
    • Replies to Viola Gordon>

      Comment by adamh posted on

      Viola - do you mean the property is registered in your sole name and that your ex-spouse registered his rights of occupation? If so you can apply to remove the notice using form HR4 and a copy of the decree nisi
      https://www.gov.uk/government/publications/cancel-home-rights-registration-hr4

      Reply
      • Replies to adamh>

        Comment by Viola Gordon posted on

        Hi Adam,
        Thank you for getting back to me.
        Yes the property is solely in my name and he registered his rights of occupation.
        Fabulous, so I just fill in the HR4 form and send it off with a copy of the Decree nisi? The absolute should happen on Wednesday 14th.

        Reply
        • Replies to Viola Gordon>

          Comment by adamh posted on

          Viola - correct. The link to the form also links you to the postal address for your application. Send an official or certified copy of the nisi

          Reply
          • Replies to adamh>

            Comment by Viola Gordon posted on

            Thank you!!

  18. Comment by SteveG posted on

    My Dad passed away a few months ago and we're in the process of selling his house. He divorced 30 years ago and my Mums solicitor insisted on a rights of occupation on the house which was never removed. The buyers solicitor is now insisting this be removed. What's the quickest way to do this via HR4? My Mum is happy to help by writing a letter, or do we send in the DA with the form instead? I'm a bit confused how they will even know she is the same person without ID, as she remarried and now has a different surname, address and signature! Thanks.

    Reply
    • Replies to SteveG>

      Comment by adamh posted on

      SteveG - HR4 is the correct form along with an official copy of the decree nisi/absolute. You could also submit it with an official copy of the death certificate.
      I assume the issue re names now being different would not be relevant to the decree or death certificate.

      Reply
  19. Comment by Ian posted on

    Hi. In general terms, someone will only be able to seek protection under the Home Rights legislation during the subsistence of the marriage, unless an order of the court directs otherwise.

    Please our guide which may be interest but please bear in mind that it is written for legal professionals and may therefore contain some unfamiliar terms - http://bit.ly/2dBrrv8 .

    Reply
  20. Comment by Ian posted on

    You're welcome.

    Reply
  21. Comment by John posted on

    I am divorced. My divorce states that the matrimonial house is completely my (ex) wife's. However she had 56 days to take my name off the deeds. She never did - do I have any say over the equity when she sells?

    Reply
  22. Comment by Susana posted on

    Hello
    I need some advice please. I got divorced in 2008 and the courts awarded me my flat. My ex husband filled out a TR1 form to transfer the property to me. My mortgage lender refused to put the mortgage just in my name as I was unemployed due to ill health. I have been with my current partner 8 years and would like to add him to my mortgage and remove my ex husband. The TR1 form has now expired and I cannot find my ex husband as he lives in South Africa. I am really stuck and was wondering if anybody had any advice or is this a loosing battle. Also the bank says that I can add my current partner and it would be a new mortgage, but as for the Deeds I would have to find my ex husband which has proved impossible.
    Many thanks

    Reply
    • Replies to Susana>

      Comment by adamh posted on

      Susana - you need legal advice here as if you cannot trace your ex then you will normally have to go to court to prove he cannot be found. We can't make that judgement and it has to be a court which considers the evidence. This tends to be the approach where someone is 'missing assumed dead' so it's important for your solicitor to be involved to advise on the weight of evidence you are likely to need.
      it may also be worth asking the solicitor about the filled in TR1 as well. You say it's 'expired' so you may have already done so of course although the key tends to be whether they were completed correctly and executed.

      Reply
  23. Comment by Emsee365 posted on

    I am in need of advice.

    i have placed a home right notice on the property. my wife who is now occupying the house needs to move the mortgage over to a new company as it will allow her to decrease the amount each month to pay the mortgage.

    its a significant reduction allowing her to be able to afford to live there but the mortgage company will not take on her mortgage due to the notice placed on the property.

    does it need me to remove the notice using a HR4 or is there a way that i can approve the move?

    Thankyou

    Reply
    • Replies to Emsee365>

      Comment by Ian posted on

      Emsee - As a possible alternative to removing/cancelling the notice, you may agree to the postponement of your home rights to any other mortgage or interest in the matrimonial home. This is set out under paragraph 6 of Schedule 4 to the Family Law Act which is the legislation which governs this process. The postponement may be contained in:

      - the subsequent mortgage which you will have executed

      - incorporated in a separate written document or letter signed by you.

      We cannot advise you as to which option to take or on the correct form of wording required under the above legislation. So we would suggest discussing this further with parties involved and/or consider taking some independent legal advice from Citizen's Advice or a conveyancer, such as a solicitor.

      Reply
  24. Comment by John posted on

    Hi
    My name is currently being taken off the title deeds of a property I owned with my ex wife (who still lives there). I never lived there. If I buy another house before my name is taken off the title deeds, does that mean I am liable for the higher stamp duty charges?

    Reply
    • Replies to John>

      Comment by NimishP posted on

      Hi John

      I would suggest you speak to HM Revenue & Customs with regards to Stamp Duty Land Charge. It is not something that we would be able to answer.

      Reply
  25. Comment by Sonja Walker posted on

    Hi
    I am divorced from my husband. We were originally going to sell the property but now I am going to buy him out. Can I change land registry without my mortgage company being involved. I have been paying the mortgage for 15 months and can afford to but the lender probably won't authorise the mortgage. Ex is ok with staying on the morgage but I want him taken off the legal owenership of it.

    Reply
    • Replies to Sonja Walker>

      Comment by NimishP posted on

      Hi Sonja
      You would need to examine your title register to see if there is any restriction on the title in favour of the lender. If there is a restriction, then we would require the consent or participation of the lender in order to register the transfer from you and your ex-husband to you only.
      I would strongly recommend you seek legal advice before considering any action.

      Reply
  26. Comment by Dee Boscoe posted on

    HI, my husband left the family home in 2009, divorced in 2012. The family home was given to me 100% in divorce court settlement.
    . I have been trying to sell since 2013 but my ex refuses to take his name of the deeds. I have my divorce solicitors helping me take him to court to sign for him but they have told me i now need to complete a TR1 form and will need a conveyance solicitor. I already have permission to take exs name of deeds from the mortgage company with no mention of having to use a solicitor. If i remember right my ex put something on the deeds during our split to stop me selling . Is this the only form I need or do i need to fill more in and will I need a conveyance solicitor as my fianaces are at breaking point now. MANY thanks

    Reply
    • Replies to Dee Boscoe>

      Comment by adamh posted on

      Dee - what normally happens here is that the court orders the transfer from joint to a sole name and expects the parties to then do exactly that. There will always be a need for a legal transfer of ownership using a form TR1.

      If it does not happen, say one party refuses, then you usually go back to court and the judge, if satisfied, may execute the TR1 in place of the other party.

      You don't have to use a solicitor although in such cases they are often involved as the transfer is part of the wider divorce for example

      Our online guidance explains what forms are needed and how to complete them. Add in the court order to the mix and you have what is needed as and when the TR1 is executed. https://www.gov.uk/registering-land-or-property-with-land-registry/transfer-ownership-of-your-property

      A solicitor is familiar with the forms and processes so we always recommend using one but it is not compulsory. If you have any problems filling in the forms or understanding the registration process then you can ring our support team on 0300 006 0411. We can't give you legal advice though

      Reply
  27. Comment by adamh posted on

    Dee - if it was a Matrimonial Homes/Family Law Act entry then form HR4 and an official copy of the decree absolute should enable it to be removed https://www.gov.uk/government/publications/cancel-home-rights-registration-hr4

    Reply
    • Replies to adamh>

      Comment by Dee Boscoe posted on

      great, many thanks for all your help.

      Reply
  28. Comment by adamh posted on

    Als - I assume you mean that you have a HRN in your favour. If so then that would not, from purely a registration perspective, impact on your ability to buy a new property. You would need to contact HMRC with your query on stamp duty

    Reply
  29. Comment by Als posted on

    Yes I have one which requires removing on the final divorce payment arriving. I have found a house so will need to cancel the HRN which presumably shouldn't be too hard to do but wasn't sure if the notice would hold me up for completing on the house I wish to buy. Do you know roughly how long it would take to cancel the HRN? Also whether I could send a letter/form requesting the date that it is cancelled from in advance? Thank you.

    Reply
    • Replies to Als>

      Comment by adamh posted on

      Als - the purchase/completion process happens before anything is registered so I would suggest speaking to your solicitor as to whether it impacts or not. It won't from our perspective as explained.

      A HRN can be removed in a number of ways although the two most likely to apply here are probably when the divorce is finalised and you have the decree absolute OR you cna release it yourself. Often the divorce/property are intertwined so the next steps don't happen until the divorce is agreed/settled for example so often you wait for the court order. Again your solicitor can advise.

      In either scenario, release or decree absolute the timescale is roughly 10 working days providing all is in order

      Reply
  30. Comment by adamh posted on

    Anna - that will depend on what the court has ordered so best speak to your own solicitor or get legal advice. If the decree absolute has not been given then they will need you to release your notice on the title but I don't believe that you will need to sign any sale papers but again something to check with a solicitor as what you man by sale papers will be relevant.

    Reply
  31. Comment by Hammyk79 posted on

    My wife wants a divorce, the house was in her name but then I got added to registry & mortgage as I paid it for 10 years. We then remortgaged to get an extension. I believe 95% is in her name & 5% is in mine but I only get that if the house is ever sold. Does that sound correct ?

    Reply
    • Replies to Hammyk79>

      Comment by adamh posted on

      Hammy - it could be but we don't register the % shares I'm afraid

      Reply
  32. Comment by adamh posted on

    Sarah - I'd suggest checking what was submitted to transfer the ownership to the current owner and if appropriate then get legal advice. Use our contact form to submit the specific details re the property/title number and ask us what we have on record re the Transfer/sale. We will email back to explain what is available and how you can apply for copies as appropriate https://landregistry.custhelp.com/app/contactus_general/

    Reply
  33. Comment by Adrian posted on

    I am currently separating from my partner (with child of 5yrs old) . They are staying in the current family home that I solely own. I am wanting to buy a home for me to live in. Do I need to pay the additional stamp duty as if a second home?

    Reply
    • Replies to Adrian>

      Comment by adamh posted on

      Adrian - not one we can cover I'm afriad. You need to contact HMRC re SDLT enquiries

      Reply
  34. Comment by klongson posted on

    My partner has been divorced for 2 years and her ex lives in the family home , which is for sale. What happens if it does not sell as we are renting until we can use the sale to but another home.

    Reply
    • Replies to klongson>

      Comment by adamh posted on

      Klongson - I'm afraid we can't advise you as we register the purchase but don't deal with divorce or similar issues. I'd recommend seeking legal advice or try online forums such as Money Saving Expert where such matters are aired and discussed

      Reply
  35. Comment by Bee posted on

    my spouse has already transferred the marital home to his parent's name before divorce - is there anything i can do?

    Reply
    • Replies to Bee>

      Comment by adamh posted on

      Bee - you need legal advice I'm afraid to ascertain whether you have any interest in the property that can be protected on the register or with regards the separation/divorce.

      Reply

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