We have recently looked at co-habitation and the rights of cohabitating couples when buying and selling property. In this mini-series, we will look at married couples and how the law deals with property that is owned by both parties to the marriage or civil partnership and property that is only owned by one of the spouses of civil partners.
What is a matrimonial home?
In order to identify whether a property can be regarded as a matrimonial home, there is a two stage test to apply:
1. Property can become a matrimonial home if the property is a ‘house, caravan, houseboat or other structure’ ; and
2. the property in question ‘has been provided or has been made available by one or both of the spouse or civil partners as, or has become, a family residence’.
The best way of demonstrating whether a property would be classed as a matrimonial home or not is by the following examples:
Ross and Catherine are married. Ross owns a house in his sole name which he and Catherine and their children live in together. The property that Ross owns would be classed as matrimonial property as it satisfies the two tests outlined above (i) the property is a house which falls within the types of property that can be a matrimonial home and (ii) the property has been made available by Ross as a family residence as Ross, Catherine and their children all reside in the property.
Harry and David have a registered civil partnership. Harry owns a flat which he lives in and David owns a flat which he lives in. As Harry works away most of the time Harry and David reside separately and do not share a property together. The individual flats of Harry and David would not be classed as matrimonial property as although the property falls into the type which can be classed as matrimonial property the fact that they do not reside together as a “family residence” excludes the flats from being matrimonial property.
Example 2 demonstrated that it is possible for a married person or a civil partner to own residential property without it being classed as a matrimonial home; the question of whether a property falls within the definition depends on the actions and intentions of the parties. Additionally, it may be possible for a married couple or civil partners to have more than one matrimonial home.
Lesley and John are married. Lesley owns a flat in her sole name which both her and John lived in for 3 years. In 2013, Lesley and John moved in to a new house which they both own, and have lived there ever since with their two children. Lesley’s flat has been rented out since 2013. The flat is not classed as a matrimonial home, as although Lesley and John have lived in the flat while married, more than two years have passed which means that the property is no longer classed as a matrimonial home. The property they live in with their two children would be classed as a matrimonial home. If a property has not been used as a matrimonial home within the last two years, it then loses the status of a matrimonial home.
Why does it matter?
The Matrimonial Homes (Family Protection) (Scotland) Act 1981 and Civil Partnership Act 2004 gives spouses and civil partners certain occupancy rights to their matrimonial home and we will look at this in more detail in part 2.