Marital Home Provisions

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Contents 1 6.1 Marital Home 2 6.2 Sharing of the Marital Home 2.1 Sole ownership and joint ownership 2.2 Joint Tenancy and Tenancy-in-Common

Buying and owning a home together is probably a priority for every couple considering marriage. Sharing a home with your spouse is one of the most important issues to think about. Ideally, your legal position should be clear from the beginning. The implications for not protecting your rights could critically affect your circumstances in the future. You could become homeless.

If you are planning on buying a property together, you need to decide how you are going to own the property, agree on it, and make this clear in your Marriage Contract.

Note that this is the sixth numbered section, Section 6, of the Marriage Contract.

6.1 Marital Home

The first task is to define exactly what is meant by the term 'marital home'. This is intended to prevent any confusion that may arise during negotiation of the Marriage Contract or any time in the future. A sample clause is provided below.

6.1.1

In this Agreement the term 'marital home' means a dwelling, caravan, houseboat or other structure in which the couple ordinarily reside following the execution of the Agreement and for the lifetime of the Agreement, and includes any garden or other grounds or building usually occupied with, or otherwise required for the amenity or convenience of, the dwelling, caravan, houseboat or other structure.

For further clarity couples may wish to include a related clause that makes it clear what is not meant by the term 'marital home' in the Agreement. In many countries, entering a state marriage obliges a couple to surrender decision-making power over their home, both its ownership and occupancy, to the family law court system of that state. With a WeDo Marriage, the couple retains those powers and does not surrender them to the state.

6.1.2

For the avoidance of doubt it is stated that the term 'Marital Home' in this Agreement does not mean 'family home' or other expression given to describe any dwelling over which the State has power to determine occupancy or ownership.

6.2 Sharing of the Marital Home

Sole ownership and joint ownership

A home in which a couple live may be owned in two ways:

• Sole ownership: Both live in the home, but only one has their name on the title to the property.
• Joint ownership: Both spouses live in the home, and both have their name on the title to the property.

Obviously, couples will seek the joint ownership rather than the sole ownership option. But joint ownership is available in two forms, and it is important for couples to understand what each form of joint ownership means.

Joint Tenancy and Tenancy-in-Common

There are two types of joint ownership of a home:

• Joint tenancy: The couple together own the whole home, but neither has a distinct, individual share in it. The home is like the headquarters of a business company with two directors; it is owned by the company as a whole, and not by any one individual director.
• Tenancy-in-common: Each member of the couple owns a distinct share of the home. The relative shares might be 50%-50%, 60%-40% or whatever.

Tenancy-in-common enables a couple to decide how the ownership of their home is shared. For example, if one has contributed more to purchasing the home, the couple's relative shares might start at 70%-30%. The couple could agree that, over time, their shares would equalise at a 50%-50%.

Also under tenancy-in-common, if the home is sold, each owner is entitled to his or her percentage of the sale proceeds. If they die, their share of the home forms part of their estate. It does not automatically pass to the other owner.

The following sample clauses are offered as a starting point for a couple who want to share thier Marital Home as tenants-in-common, and who want to devise a joint ownership arrangement that respects both their financial contributions and the spirit of equality.

6.2.1	[Romeo] and [Juliet] acknowledge each others' material interest in their Marital Home and have therefore agreed the following provisions in relation the ownership of their Marital Home.
6.2.2	[Romeo] and [Juliet] agree to hold beneficial interest in the Marital Home as 'Tenants in Common'.
6.2.3	[Romeo] and [Juliet] agree, as of the date of execution of this Agreement, to own and retain separate shares in the Marital Home in proportion to our financial contribution towards its purchase.
6.2.4	[Romeo] and [Juliet] agree that, as of the date of execution of this Agreement, the ownership of shares in their Marital Home shall be apportioned as per the Marital Home Transfer Mechanism set in Exhibit Set D.

 

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