Divorce, Property Law and Deeds of Trust

As divorce solicitors, we are sometimes told by a husband or wife that there is a property deed of trust that sorts out ownership of the family home. The relevance of a deed of trust in relationship breakdown and divorce can be a bit complicated.

Our divorce solicitors can advise you if you are a husband or wife looking for financial settlement advice or if you are a parent who contributed towards the deposit on your child’s family home but the child is now separating or getting divorced.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form. 

Who owns the family home?

A divorce solicitor can check who legally owns the family home by obtaining what are called office copy entries from the land registry.

The office copy entries say who is the legal owner of the family home. Ownership could be sole or joint. 

When a property is jointly owned the owners could be the husband and wife as joint tenants or tenants in common or they could have agreed to a parent being a co-owner if the parent or parents helped with the deposit.

In some cases, joint owners will enter a deed of trust to set out how the property is owned and how the net proceeds of the sale will be split if the family home is sold.

In other cases, ownership of the family home is a bit more complicated. The legal owners could be the husband and wife but:

1. A father or mother lent money towards the house deposit or paid for renovations and protected the borrowing with a loan agreement or
2. A father or mother agreed that their child and spouse would be the legal owners of the property but they would have a beneficial interest in the property to reflect their deposit contribution, protected by a deed of trust

Are you in an unmarried relationship or married?

If a couple has a deed of trust that sets out the legal or beneficial ownership of the family home between them then the status of the deed of trust on relationship breakdown depends on whether they are living together in a cohabiting relationship or married.

If you are unmarried

If the couple is in an unmarried relationship the deed of trust is very important as the court will decide property ownership using property laws rather than assessing the needs of the husband or wife or considering fairness. 

If you are unmarried but have a dependent child you may be able to make a claim for housing under the Children Act 1989 but that type of claim does not give you extra property rights over the family home.

If you are married

If the couple is married the court will look at a range of factors to decide on an appropriate financial settlement and financial court order. 

The court has the power to order the sale or transfer of the family home despite the terms of the deed of trust. The court will make its decision after assessing the factors contained in Section 25 of the Matrimonial Causes Act. These include the needs of any children as well as both parties’ housing and other needs and their ages, health and financial and other contributions. 

If you are married, the relevance of your deed of trust will depend on factors such as: 

• Did you sign the deed of trust before you got married and has a lot changed since then? For example, the arrival of children or a 20-year marriage 
• Did you sign a prenuptial agreement or a postnuptial agreement? Is the agreement consistent with the deed? Did you both get advice and provide financial disclosure when you entered the prenuptial agreement or postnuptial agreement? If so, the family court will start from the premise that the agreement should be upheld in full if the terms of the agreement are fair
• Was the home owned by one of you before the relationship started? For example, was it inherited? This may be relevant in a short marriage without children 
• What are your respective needs and can they be met whilst respecting the contents of the deed of trust?

If parents entered a deed of trust

If parents or in-laws entered a deed of trust as joint legal or joint beneficial owners of the family home as they contributed toward the deposit they can ask to be joined as parties to a financial court application between a husband and wife. They are called intervenors in the financial settlement application.

Parents may not need to intervene in the financial court application between their son or daughter and their spouse if the married couple agrees that the parents are entitled to what is said in the deed of trust. The divorce court can then decide what should happen to the rest of the equity in the family home using the factors in Section 25 of the Matrimonial Causes Act.

Representing husbands, wives and intervenors

At Evolve Family Law, we can represent you in negotiations and in property or financial court proceedings if you are unmarried or married and if you are a parent who contributed towards their child’s family home and signed a deed of trust.

We have substantial experience in divorce, property law and deeds of trust.  

In an April 2024 Trustpilot review client Chris wrote:

I used Robin Charrot to help in a family member’s divorce proceedings and a deed of trust that had been written. He was extremely helpful and gave very good guidance on how my particular problem could be resolved. He got back to all emails very quickly and compared to lawyers in London his fees were very reasonable. The support staff I dealt were very efficient and I would highly recommend the firm.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.