In situations where you owned your house before getting married, you may feel your house belongs to you, and you alone. The reality however, depends on your specific situation, as there are many mitigating circumstances that can intervene. This post will go through them and explain what can be done to enable you to sell your house.
Firstly, it’s important to know the difference between matrimonial and non-matrimonial property. Matrimonial property is property acquired during marriage. Non-matrimonial property is property not only acquired before marriage, but potentially before you even knew your ex. This includes assets such as inheritance, pre-acquired wealth and your house if you wholly owned it before you met, or married, your ex.
Whereas matrimonial property is usually split between both exes upon divorce, many types of non-matrimonial property do not have to be. Non-matrimonial property can be subtracted from the total sum of assets before the assets to be shared are valued.
If you have been married for more than 5 years, even if you had bought your house before marriage it is unlikely to be considered non-matrimonial property. This is because you have both invested a lot of time in each other’s lives, and the house is likely to be the greatest asset you both shared. If your ex can prove they made contributions to its upkeep, or they had registered their Home Rights with the Land Registry, then the court may grant them a share from its sale value. It may be wise to agree to this through a solicitor, saving you court fees. You will likely get a much larger portion and still be able to sell your house.
If you added their name to the deed or mortgage while you were married, then again, the asset will likely be shared upon divorce.
Where short marriages are concerned, or in cases where the relationship prior didn’t last very long, the house is likely to be considered non-matrimonial property, and you should be able to sell your house as you wish. This is the case even if your ex registered their Home Rights, as they will dissolve after divorce. It is wise to give your ex fair warning of this, so that they can vacate the property with enough time to find somewhere else to live.
If you both signed a pre-nuptial agreement before marriage, stating you would retain full home ownership in the event of divorce, then you have greater evidence for your full claim to your house. Though a prenup is not legally binding, it can show the court that an agreement was made, emphasizing your case. Still, the court could decide that giving you full value of the house sale would be unfair, especially where long marriages are concerned. The time between signing the agreement and getting married, whether both of you were given fair legal advice and whether you had both given full financial disclosure will also be taken into consideration. It is important to ensure that you are honest from the beginning, as the court is likelier to go in your favour if you were.
The court will also consider whether you have children together, your ex’s financial situation if you were to get the house and whether the mortgage had been paid off among other factors.
It should be noted that if you changed the tenancy from sole to joint tenants then your ex has as much right to the house as you do. In this case, you could buy out their share, or convince them of the benefits of selling. See our previous post, ‘Can I force the sale of my house during a divorce?’ for more detail on this.
Whatever your situation, the determining factor in whether you still fully own your home is whether the court, or solicitor, believes your home is matrimonial or non-matrimonial property. Even in non-matrimonial cases, the court may still give your ex a share from the house sale – so long as you both agree to sell. Court cases can be lengthy and costly, especially if the court decides you should both get a share, but further disagreements arise.
When it comes to divorce and selling the house, neither situation is easy. Ensuring you talk to your ex about what you both want and coming to an agreement is important, and can make the process less tiresome.
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