Who Gets To Stay In The House During A Divorce

Divorce can be a difficult and emotionally charged process, especially when it comes to determining who gets to remain living in the marital home or former matrimonial home (FMH), be that before the divorce has been finalised or how it is dealt with as part of financial negotiations.

In family law, how the marital home is dealt with in a divorce is often a central issue, as it represents the family’s primary asset and an asset which the parties and their children have strong emotional ties with.

The FMH can be treated very differently from other assets the parties own. It should be noted that who is the legal owner of the property or who pays the mortgage may only have limited significance when the parties look at dealing with the property as part of a financial settlement particularly when this is the single largest asset available.

Often cases turn on the respective housing needs of each party and their children and other principles of family law eg sharing and compensation do not come into play since the housing needs of each party tend to trump other considerations. The same is not to be said in cases where there are resources available in excess of need.

In cases where the FMH is the only available asset it is common that the home is sold so that the proceeds can be shared in such a way that both parties’ housing needs can be met, and the parties may have a dispute as to what % of the sale proceeds each party should receive to meet their needs.

There are other cases where as part of a final settlement it may be appropriate for one party to remain living in the FMH to the exclusion of the other until a specified event occurs such as the children attaining a certain age and a sale is deferred until that point.

Usually (but not always) the sale proceeds are divided equally at the future point in time. These Orders are known as “Mesher Orders”. They are often put into place when there are young children involved who the Court does not want to see having to rehouse during their infancy (but that is not always when they are used).

What legal rights do I have to my home?

It is often the case that one spouse/civil partner will state that they do not wish their spouse to remain in the home during the course of the divorce proceedings. If one party does not agree to vacate then in exceptional circumstances it may be necessary to apply to the Court for an Occupation Order which can have the effect of excluding one of the parties from their home until such time as financial remedy proceedings have been resolved.

Do note that the Courts will usually only deprive someone of their home rights in exceptional circumstances. Usually if there has been threats, harassment or violence albeit those are not a prerequisite. Providing the eligibility criteria is met the Court will look at the “balance of harm” test first which is set out in paragraph 33(7) of the Family Law Act 1996 when deciding whether someone should be removed from their home before their finances have been resolved.

The Court applies a two part test, the Court will first consider whether the Applicant or relevant child is likely to suffer “significant harm” because of the Respondent’s conduct should the order not be made. If the answer to the above is yes then the Court must make an Order to exclude the Respondent unless the Respondent or relevant child is likely to suffer significant harm which is as great or greater than the harm attributable to their conduct.

If the balance of harm test is not met then the Court can still make an Order by applying their discretion and looking at all of the circumstances of the case (s33(6)) the factors set out there look at the financial resources of the parties and children, the effect of an Order (or lack of one) on the health safety and wellbeing of the parties and their children, and the conduct of the parties. That list is not exhaustive so there may be other factors that are relevant depending on the facts of the case.

It is important to emphasise that these Orders are only made in exceptional circumstances and applications to exclude a party should not be made lightly. It may for instance be worth considering whether occupation of the family home can be regulated in some other way first for instance an agreement might be reached that the parties are only to access certain parts of the home at specified times to avoid them coming into contact with another or to exclude one party from certain parts of the home e.g. the master bedroom.

What are home rights?

Whether you rent or own your home, or whether it’s in just one or both of your names, both parties have legal ‘home rights’. Home rights allow both you and your partner to stay in the property regardless of who bought it. These rights stand during the duration of the divorce until a financial settlement is reached or the imposition of a Court order which allows for the sale or transfer of the property.

If you do not own the property and it is owned by your spouse, it is very important that you should remain in the home and immediately register home rights with the land registry. This will give rights of occupation under what is known as the Family Law Act 1996. There are two steps to registering your home rights:

  1. Find out if the home is registered with the Land by searching the register here
  2. If the home is registered, apply to register your home rights here or if the home is unregistered, you can apply to register your home rights here

These rights come from the Family Law Act 1996 (UK) and apply to married couples and civil partners who live in their family home together. They only apply until the divorce/dissolution, or dissolution of civil partnership, has been finalised and the financial settlement agreed by the courts.

Do I lose the house if I move out?

It is never an easy decision when looking at whether to move out of the FMH before the finances have been resolved. If it is the case that remaining living with a spouse is detrimental to your wellbeing and/or the children of the family and there are resources available to rehouse this might be the sensible option particularly in an acrimonious separation which can take a tremendous toll on your wellbeing and expose the children to avoidable harm.

There may however be a significant downside to doing so and the following should be considered some of the possible consequences of moving out, you may find yourself:

  • having to meet two sets of financial obligations – those to live elsewhere and those of the former matrimonial home
  • facing an imbalance of accommodation during this interim period that can lead to acrimony and difficulty in housing the children when they stay with you
  • If you move out without agreeing childcare arrangements then you might find yourself having to take whatever time with your children that is being offered/agreed which may be far less than you are happy with (assuming the children do not move with you and remain with the occupying party).
  • If the FMH has to be sold or will likely be sold as part of a final financial settlement there may be some prevaricating by the occupying party (since they have the benefit of sole occupation and will not be incentivized to get on with the negotiations )
  • It may trigger a child maintenance obligation

There are issues concerning how often you should see the child/children if you are the one leaving the home, so these should be fully determined before you go if possible. This will avoid objections to the amount of time that you are seeking with the children, which in turn may lead you having to make an application for child arrangements order unnecessarily.

It is imperative that if you are the one that wishes to continue living in the property and you wish your spouse to leave, that you should consider beforehand what outgoings should be met by them or by you or by both. This will help to avoid any conflict or the necessity of having to apply to the Court for interim provision which in itself will lead to additional expenditure and legal costs.

How we can help…

When it comes to determining who gets to stay in the family home during a divorce, it is important to understand the different factors that can come into play. While the court may issue a court order to make a decision, it is ultimately up to the parties involved to negotiate and come to an agreement that works for everyone.

This can be a difficult process, but with the help of the professionals here at Lloyd Platt & Co, it is possible to find a resolution that allows both parties to move forward and establish new homes for themselves and their families. We are experts in family law, children’s matters, civil partnership, cohabitation, financial settlement in divorce and pre and post nuptial settlements.

If you are wondering who gets to stay in the house during a divorce, our family lawyers are here to help. Get in touch today. To make an enquiry please fill in our form, call us on 0208 343 2998 or click to contact our divorce lawyers.

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