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What rights do you have to the family home when you separate?

Sep 29, 2018, 22:19 PM
Family Law, divorce, split, separation, married couple. civil partnership, property rights, family home, joint ownership, lock changes, mortgage
When meeting new clients, two frequently questions are: 'I have left the property after we separated – am I allowed to go back and let myself in?' and 'My ex has left our family home – can I change the locks?'
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Date : Apr 6, 2018, 06:30 AM
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As a family lawyer I am often asked about legal rights regarding a jointly owned property when a married couple separates.

The family home may often be the main asset for couples who are married or in a civil partnership. Both parties will understandably be concerned about where they will live, and arguments about the house are not uncommon at such an emotionally charged time.

Well-meaning family and friends may fuel concerns over rights to the jointly owned home, offering their opinion of who should be entitled to stay in the property.

When meeting new clients, two frequently questions are: 'I have left the property after we separated – am I allowed to go back and let myself in?' and 'My ex has left our family home – can I change the locks?'

Your rights if you have moved out 

The law is quite clear that where the property is jointly owned (ie, held by the two parties in joint names) each of them is permitted to enter that property without conditions. This is the case even if one of them has moved out following their separation.

Ideally the person who has moved out should let their ex know of any plans to return to the house – for example to collect personal belongings – rather than to turn up unannounced. If one of them feels harassed or intimidated by the other as a result of gaining entry to the property, there are measures that the court can take to prevent that person returning to the property, irrespective of their legal ownership. I strongly urge anyone to take legal advice if they fear that this will happen to them.

Lock changes do not override a right to enter

Changing the locks may be a useful plot device in television dramas, but if a house is in joint names changing the locks may not have the desired effect. A spouse who is locked out of his or her jointly-owned home will not face a conviction for criminal damage should they then ‘break in’ in order to gain access. However, as well as creating further animosity, there is the real potential for this to lead to a breach of the peace which in turn may lead to police involvement. Any person who has been prevented from accessing their property as a result of the ex having changed the locks should take legal advice before taking matters into their own hands.

Mortgage reminder

If the mortgage is in joint names, then each person is fully responsible for the liability and payment in full. Contrary to popular belief, it is not a case of each person only having to pay a 50% share. If one person fails to pay then the other will need to take steps to ensure that the full instalment is paid to avoid mortgage arrears. This is known as 'joint and several liability'. However, there needs to be a sensible and practical solution in the event that the couple separates. Many couples who are separating do not relish the thought of continuing to live together so one of them may pack their bags and leave quickly. You should try to agree an arrangement between you to ensure that the mortgage continues to be paid if one of you moves out. This may require some level of negotiation if one of you has to fund another mortgage, or pay rent. However, every situation is different and the best solutions are usually found with the assistance of experienced matrimonial lawyers, which are able to advise on the best solution for their clients.

This article was originally published bySilk Family Law
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