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Property Rights

Your Property Rights

Whether you waive your rights to your property by leaving depends on the following points:

  • are you an owner, either solely or jointly?
  • are you married?
  • is the house owned by you or your spouse?

If you own the property, either wholly, or jointly with your partner, or with a mortgage, you will still own it in just the same way whether you are actually there or not.

Problems could arise if the house is in the sole name of your spouse, in which case you should take a particular formal step to protect your interest in it.

If you and your partner are not married, and your partner owns the house, you may not have any legal right to make a claim for part of the house. This is an area which we deal with in the 'Separation' section. If you have children with you, it may be necessary to obtain a court order to enable you to return to the house and live there, and for your spouse to leave. This is a point which we would try to resolve by negotiation, if it is possible.

If You Die

Whether or not you have already made a will, when you are separating or divorcing you must consider what would happen if you were to die. An existing will may be challenged on your death if you do not do something to up-date your wishes in the light of your divorce. If you have no will, the State will decide what must happen to your assets under the Laws of Intestacy.

Those laws would surprise you. It is not simply the case that everything goes to your spouse. It is certainly not the case that everything goes to your children if you still have a spouse (for example if you only separated, or the divorce is not yet absolute) who is living at the time of your death. Neither will religious laws prevail over the Laws of Intestacy. These laws are not flexible, and it can take a very long time to deal with all your affairs.

Your loved ones are going through a difficult and distressing time because they have lost you. You can make it easier for them by writing down, in the proper form, what you want to happen. It is not macabre or potentially fatal to make a will. It is good planning. We all take out insurance, in case anything unexpected occurs. We strongly advise that you write down, in a will, exactly what you want to happen to your assets.

For example, when you are separating or going through divorce, you might not feel that you want your house or your savings to go to your estranged spouse. You may prefer the children to receive your assets, either in trust if they are minors, or absolutely if they are adult.

The main message here is - think about it, and make a proper will, to ensure that your wishes are met.

Click here to go to our FAQ section regarding Wills.

Please also see our pages on other aspects of divorce such as children and divorce, pensions and divorce, how much will have I have pay to get a divorce, costs involved in separation and divorce, who sees the divorce petition, how long will a divorce take and what about other family members?

We are always willing to discuss each individual situation.

Please phone Alistair Dobson on 01858 445480 or James Haworth on 0116 212 1000 or Sarah Townsend on 0116 212 1080 to arrange a free initial appointment, or visit one of our free walk-in clinics.

Please note this will be kept in strictest confidence and is required solely to ensure we do not have a conflict of interest according to SRA regulations. The party WILL NOT be contacted by Lawson-West.