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Three Common Questions About Matrimonial Homes and Divorce

This blog will answer three of the most common questions about Matrimonial Homes and Divorce.

For many of us, the matrimonial home is a primary consideration when considering a divorce. Not only is it a significant financial asset, but residency rights will have a significant effect on your living arrangements.

If you are considering a divorce and need clarification on your continued rights regarding a matrimonial home, give us a call on 0141 611 1191.

Can I Be Forced out of the Matrimonial Home, and Does it Have to be Sold?

This question largely depends on the nature of the relationship. If you are married, then both parties automatically have occupancy rights, regardless of whose name is on the title deed. However, if you are cohabiting and only one party has their name in the title, they can apply to the Court for occupancy rights.

If you are married and have no ground for divorce, even if your partner does not have their name in the title, they can continue to live in the house for a maximum of two years by refusing to consent to the divorce.

After two years, one party can apply for divorce on the grounds of irretrievable breakdown through separation, even if you have been living in the same property as there may be financial or childcare reasons to do so. Read our financial guide for living together for the best advice on cohabitation and finances.

At this stage, if the financial arrangements are to be determined by the Court, they will decide what should happen to the whole and decide whether the house is to be sold. This decision can take several months and have uncertain results, and an out of court settlement is almost always preferable.

In short, if your name is not on the title, but you are married, you do have significant rights within the home. However, if you are only cohabiting, you may lose your occupancy rights relatively quickly.

Do I Need to Move Out to be ‘Separated’?

Whether or not you need to be living apart to count as separated is important for those who need an extended period of separation to count as an irretrievable breakdown to qualify for divorce under Scots Law. However, you can still be separated but living together.

The Court recognises that there can be numerous reasons as to why separation in different households may not be possible, and as such, you need only not be living together as ‘man and wife’. In other words, in a fairly regular functioning relationship.

If living together is preferable for childcare or moving out is difficult due to financial constraints, this will not affect divorce proceedings. Even short periods of reconciliation are permitted, so long as they don’t total in excess of six months.

Am I Responsible for the Mortgage if I Leave the Family Home?

Firstly, whether or not your name is on the papers taken out at the beginning of the mortgage is essential. If your name is not on the mortgage, the lender cannot sue you for missing payments. However, they can eventually force the sale of the home, something that needs to be considered – especially where children are involved.

If you and your ex-partner’s name is on the mortgage, both parties are responsible for keeping up mortgage payments.

However, it is crucial to keep in mind that mortgage payments can be taken into account when the Court is dividing matrimonial assets. If one party has continued to make mortgage payments, they may seek to recover these in any eventual settlement.

Get in Touch

As you can see, many aspects of the role of the matrimonial home in a divorce and eventual financial settlement depends on the specifics of your case. For concrete and reliable advice you can rely on, it is vital you reach out to our experienced team.

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