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Matrimonial Home Rights

(10 Posts)
girlynut Sat 13-Jul-13 09:36:17

A colleague has recently applied to register her matrimonial home rights with the Land Registry as she is commencing divorce proceedings and still living in the family home.

The office copy entry shows that the property is owned jointly by her husband and his brother. There is also the suggestion that his parents have a charge over the property as they are named in the charges register beneath the mortgage company.

Land Registry have rejected her application, because her husband does not hold the property as sole proprietor and also because there is a "joint proprietorship restriction" which may mean the property is held in trust for someone else (his parents).

Please can anybody confirm whether this means she does not have matrimonial home rights under s30 FLA 1996 or simply that the Land Registry cannot register it?

Should she consider registering a pending land action instead? Or applying for an occupation order? At this stage, no proceedings have been issued.

My colleague hopes to agree an amicable clean break financial agreement where he gives her a lump sum so she can buy a property of her own. He has offered £10k, she would like £30k. There are no children and the marriage was less than a year. So understandably she wants to keep things simple and avoid high legal costs.

Thanks.

RedHelenB Sat 13-Jul-13 15:25:03

She should certainly be entitled to a share of any equity after charges & brother paid out. Unfortunately if there were no children & it was a short marriage she may come away with nothing from the house unless she can show she has put money into it.

babybarrister Sat 13-Jul-13 15:31:21

RedHelen is not correct I am afraid. After the brother and the parents' interests are taken into account - and the court will have to be sure that they really have interests and had not gifted amount to the H and/or W - W would indeed be entitled to some whether or not she had put money into the house, particularly if it was her home - look at the case of Miller [House of Lords 2006]. It makes it absolutely clear that for a short marriage with no kids the starting point is half the former matrimonial home ....

RedHelenB Sat 13-Jul-13 16:24:59

I said "may" - often with a short marriage you come away with what you bring to it

babybarrister Sat 13-Jul-13 21:24:11

That is simply not what the law has been since 2006. The principle to be applied on a short, childless marriage is NOT that you get you get out what you put in - that is though what the law was before this House of Lords case. That is why the case of Miller (3 years, no kids, no contributions) was so ground breaking ...

girlynut Sun 14-Jul-13 07:48:39

Thanks for that. I'll have a look at the Miller case. H is being a jerk and refusing to disclose his parents' interest or even the amount of any outstanding mortgage. So a strongly worded letter pointing out the purpose of Form E is on it's way.

But what about the home rights? Could he potentially sell the house from under her or tell her to leave? I think a settlement can be reached but she's obviously wants to protect her position in the meantime.

digerd Sun 14-Jul-13 09:08:40

A marriage of less than a year is quite different from a 3 year marriage.

RedHelenB Sun 14-Jul-13 10:34:27

Are we talking about a woman who has given up a high earning career & a very well off husband - if not, best not get too carried away with the notion that there will be a 50/50 settlement!

RedHelenB Sun 14-Jul-13 10:41:38

The point I am making is that since the marriage was so short it is likely that the ownership & charges were not put there in order to stop her getting any money. Obviously without knowing what equity there is in the property it is hard to say what sum would be reasonable & it would be in her best interest to consult a solicitor but bear in mind that for a difference of £20,000 a lot of that would be eaten by legal fees if it ended up in court with barristers.

babybarrister Sun 14-Jul-13 19:36:09

You can get a freezing order preventing the house being sold - at the very least it can be threatened and an undertaking given by the owners. The advice you are being given by others on short marriages is simply incorrect - have a read of Miller! I have never suggested an equal division of everything - clearly that would never happen. The law is clear though that the starting point is 50:50 in relation to the former matrimonial home - the ex's lawyers will know this and if they have any sense will make an offer pronto...grin

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