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Rights to occupy the home

This content applies to England & Wales

Rights to occupy the home of joint owners who are married or in a civil partnership.

Legal rights to occupy the home

Where a married couple or civil partners are joint owners, both partners have legal rights to occupy their home. Because their right of occupation arises from property law, no matrimonial rights to occupy are granted under the Family Law Act 1996 to married couples or civil partners who both have a legal interest in the home.

Liability for joint mortgage

If they have a mortgage or other loan secured on the property that is in joint names, then both spouses or civil partners are jointly and separately liable for the full amount of the mortgage, regardless of who is occupying the home. Neither spouse nor civil partner can legally exclude the other without a court order.

Dividing up the property

In the case of joint owners, the share each spouse or civil partner holds in the property is not really relevant until it comes to dividing up the property in the case of a dispute. At this point, it may be necessary to establish what beneficial interest each spouse or civil partner holds in the property, particularly where the couple are not taking divorce or civil partnership dissolution proceedings and need to use property law to resolve any dispute. Mediation can help the couple reaching an agreement without going to the courts (for more information see family mediation on the Directgov website).

Establishing each spouse's or civil partner's beneficial interest is less relevant where the couple are divorcing or applying for a dissolution, as the courts can adjust property rights as they think fit in the course of proceedings.

For more information about whether joint owners are beneficial joint tenants or tenants in common, see the page on Establishing each owner's interest in the section on cohabiting couples: joint owners.

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