Divorce can be a difficult and emotionally charged process, especially when it comes to determining who gets to stay in the family home. In family law, the house in a divorce is often a central issue, as it represents the family’s primary asset and the place where the parties and their children have established their standard of living.
The marital home is treated very differently from other assets during the divorce process. It can be frustrating for divorcing couples to find out, but unfortunately there is no simple and clear-cut answer to who gets to stay in the house during a divorce. It simply depends on the circumstances, and not always on the legal ownership of the home or who pays the mortgage.
Reaching a mutual agreement through a separation agreement is often the preferred option for dividing assets, and this is where mediation, arbitration, and collaborative law can be valuable tools in facilitating the decision-making process. However, if you can’t agree, then either party can apply to the court to decide for you.
Always get legal advice before leaving your marital home or asking your partner to leave. Do not leave just because your partner tells you to.
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 as it would be too stressful. However, whether the house is in the name of one of the parties, jointly owned as joint tenants or tenants in common, you could both still have the right to live in the property.
If the nature of the outlay of your house is such that you could both continue to live in the house albeit restricted to your various areas, then the Court will not order your spouse to leave the home but will create a template for restriction until the divorce is settled. It is open for the Court to determine that you can take it in turns to use the kitchen or common areas and that certain areas are restricted from access to the other.
If there has been threats, harassment or violence that is or will cause harm either to you or the children, then it is open to you to apply to the Court for an injunction. You can apply for an occupation order to determine that your spouse can no longer live in the home. Note that this does not mean that the non-resident spouse/civil partner automatically forfeits any rights to the ownership and occupation of the house.
If there are children involved, the court will often consider their best interests when determining who gets to stay in the family home. If one party has been the primary caregiver for the children, the court may be more likely to allow that party to stay in the house with the children.
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:
- Find out if the home is registered with the Land by searching the register here
- 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 apply only 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?
The general advice of most divorce solicitors would be that both spouses try their very best to remain in the home pending the outcome of the proceedings in order to avoid substantive difficulties of:
- Not being able to return and having to make immediate arrangements for contact to the children which may or may not be suitable
- Finding themselves having to meet two sets of financial obligations – those to live elsewhere and those of the former matrimonial home
- There can be an imbalance of accommodation during this interim period that can lead to acrimony
If you move out, and you cannot agree a permanent solution regarding the house, the courts will decide for you in the form of financial remedies. The court is not biased against the spouse/civil partner who moved out and will make a decision based on a number of factors.
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.
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. This will avoid objections to the amount of contact that you are seeking, which in turn will lead you having to make an unnecessary application for child arrangements order.
Please be aware of the amount of maintenance that is paid if you are out of the home and the amount of contact with your children can set a precedent during this interim period. In order to avoid having to be forced into dealing on an emergency basis with interim financial position and children, it is beneficial to not move out of the house if it can be avoided.
Moving out also has the added problem of dissipating some of the matrimonial assets by paying rent during this period. Another word of caution relates to moving in with a new partner during the course of the divorce and allowing your spouse to remain in the home.
In so doing the income and capital of your new cohabitee will be taken into account in the settlement. The reason is that if their income is going towards paying off the outgoings on the home this will free up your income towards the maintenance of your spouse.
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.
