Married owner occupiers and sale or disposal of the home

Where a property is jointly owned, both owners need to consent to its sale. A joint owner does not have to do anything to protect her/his property rights when her/his relationship breaks down.

Where one owner wishes to sell the property but does not have consent to do so, s/he must raise an action of division and sale. There are two defences that the other owner can use to prevent the sale. S/he can propose a physical division of the property or buy the other party's share at an agreed price or at a value set by the court.

Where an order to sell has been granted, the court also orders the division of the sale proceeds. This will follow the division found in the title deeds, unless there is an agreement to do otherwise. If one of the parties has paid more than her/his share of joint and several obligations, for example a roof repair, s/he may receive a larger share of the proceeds than provided for in the title deeds.

Where a property is owned by one of the spouses (the entitled spouse), the occupancy rights of the spouse who is not the owner (the non-entitled spouse) will not be affected by the entitled spouse entering into a dealing regarding the matrimonial home [1] unless:

• the non-entitled spouse consented to the dealing in writing [2] or

• the non-entitled spouse has renounced her/his occupancy rights [3]

• the non-entitled spouse has lost all occupancy rights because s/he has not occupied the matrimonial home or cohabited with the entitled spouse for a continuous period of two years beginning on or after 4 May.

A dealing can include selling the home or taking out a mortgage on the home. [4] For more information, please see the page on transactions involving the home.

If the non-entitled spouse will not consent to the sale of the home, the entitled spouse or the potential purchaser can apply to the court to have requirement for written consent dispensed with. The court can make an order dispensing with consent if any of the following criteria are satisfied: [5]

• The consent cannot be given by reason of physical or mental disability.

• The spouse cannot be found despite reasonable steps taken to trace her/him.

• The spouse is below an age at which s/he is legally entitled to give consent.

• The consent of the spouse is being un-reasonably withheld.

The court will find that consent has been unreasonably withheld if: [6]

• the non-entitled spouse would not be affected by the dealing and has led the entitled spouse to believe that s/he would consent to it or

• the entitled spouse has, despite taking all reasonable steps, been unable to obtain an answer either way from the non-entitled spouse.

In deciding whether to dispense with consent the court will consider all the circumstances of the case including the needs of any children, the behaviour of the spouses and whether either spouse needs the matrimonial property to continue with work/business. [7]

If the court dispenses with consent on or after 4 May 2006 it may set conditions on the dealing. In the case of sale of the matrimonial property the court can:

• insist that it is not sold for anything less than the sum set by the court and that the deal is concluded by a date set by the court [8]

• in the case of a mortgage being granted on the home, set a maximum limit for the loan and/or a date by which the agreement must be concluded. [9]

If the court refuses to dispose of the non-entitled spouse consent on or after 4 May 2006 it may set conditions on her/his continued occupation of the matrimonial home, [10] for example it may insist that s/he pays rent.

If the sale of the matrimonial home proceeds without the consent of the non-entitled spouse, the purchaser will not be entitled to occupy the home or any part of it while the non-entitled spouse continues to have occupancy rights. [11] The non-entitled spouse can, however, renounce her/his occupancy rights at any time after the sale.

The non-entitled spouse's right to occupy the matrimonial home will expire if the entitled spouse no longer has the right to occupy it and the non-entitled spouse does not occupy the property for two years or more. [12] This will only be the case where the two-year period began of non-cohabitation began on or after 4 May 2006. If it began before that date then the non-entitled spouse will only lose her/his occupancy rights if s/he does not occupy the property for five years or more. [13]

It is usually a standard condition in the missives of sale that the seller will produce:

• a written declaration at the time of sale that the property is not a matrimonial home subject to occupancy rights, or

• a form of consent to sale from the non-entitled spouse, or

• a renunciation of occupancy rights.

Provided the purchaser acts in good faith and this information is provided, the non-entitled spouse's occupancy rights will not be enforceable. [14] If the entitled spouse falsified the affidavit, consent or renunciation, the non-entitled spouse could apply to the court for compensation for loss of occupancy rights from the entitled spouse. [15]

It is not necessary for these documents to be provided before title to the property can be transferred. [16] The lack of provision of Matrimonial Homes evidence will not prevent the title being transferred and entered into the Register of Sasines. A qualified statement will be entered into the register stating that the evidence has not been provided, however this will not prevent the non-entitled spouse exercising her/his occupancy rights as these rights only affects the right to vacant possession and not the title to the property. [17]

To obtain possession of the property, the purchaser could apply to the court to have the requirement for consent from the non-entitled spouse dispensed with.

If the purchaser sells the property to a third party in good faith and for value on or after 4 May 2006 the third party will have the right of vacant possession despite the fact that the non-entitled spouse did not give consent to the original sale. [18]

If a non-entitled spouse fears that the matrimonial home will be sold without her/his consent s/he should be advised to seek advice from a solicitor. An inhibition on the sale of the property may possible if the non-entitled spouse has a monetary claim against the other spouse.