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Whether you can be forced to leave or sell a former shared home depends on a number of considerations such as whether you were married or in a civil partnership, if you are joint owners, or whether you were cohabiting. However, there are safeguards in place to stop one partner from forcing out another from the former family home.
What if the house is in the sole name of my spouse?
If you are not married and only one person owns the property or is a sole tenant of a rented property, you can still be protected. However, this right is not automatic, and you will have to apply for a court order. If successful, the right will only last for six months, although it can be extended for a further six months if the court believes it to be necessary. If the house is going to be sold, a cohabitee does not have the same protection as married couples or those in a civil partnership.
When the property is owned jointly by both cohabitees (or joint tenants) then neither can force the other out, and if one wishes to sell but the other does not, then the matter will have to be referred to the court.
Civil Partnership or Marriage
If the property is owned by one party (or a tenancy is in one party’s name only), and they are married, the person who owns the house or holds the tenancy has the right to stay there. But they cannot force the other party out of the house because as a “non-entitled” civil partner or spouse, they have the right to occupy together with any children. Even if the house is sold to someone else, they still have the right to continue living there.
If the owner of the property wishes to sell it, they would need to obtain the consent of their spouse or civil partner. Without this, they would have to make an application to the court to ask for their removal, such orders have an extremely high bar, and it is only used in cases of domestic abuse towards either the spouse or the children, which includes threatening behaviour.
In cases of joint ownership or tenancy, neither can remove the other unless an exclusion order is obtained from the court. If one spouse or civil partner wishes to sell the family home and the other does not, then an application will need to be made to court. Sometimes the court will order a postponement of the sale or refuse it altogether if the home is needed for the children and there is no alternative accommodation available.
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Splitting the house without going to court
Going to court to split the house is not inevitable. If you have a pre-nuptial agreement, what happens to your property in the event of divorce will be laid out within that. If not, if you are on speaking terms with your ex-partner, you can settle financial issues arising out of the divorce without going to court. Mediation is also a good way of bringing parties together to reach an amicable agreement and iron out issues surrounding property, finances, and child arrangements.
What if one person wants to stay in the house but can’t afford it?
One spouse can transfer the title to the other wanting to remain in the home, however that person may then need to use other sources of funding such as cash reserves, alternative loans, or pension pay-out, to negotiate and complete the buyout. The remaining spouse would still need to refinance the mortgage on their own if the loan was in both names, which may be problematic if they do not meet the new mortgage provider’s eligibility criteria. In simple terms, the mortgage provider will require the loan on the house to continue to be repaid by one or both parties and if nether party can afford it, the property would need to be sold to prevent the mortgage company taking possession.
An alternative may be to consider a “deferred sale”. This temporality delays the sale of the property until certain trigger events occur, such as children leaving full-time university, or entering full-time work. Here the parent with day-to-day care of the children would remain in the home, but the property would still be owned jointly between the parties.
Who gets the house in a divorce with children?
If you cannot agree what to do with the family home between you, then it will be a matter for a court to decide. The court’s first consideration is always the welfare of the children, and although not the only factor, it tops the list. This usually means that if the children are living in the family home and the person they live with cannot afford to buy or rent a property elsewhere, the likely outcome will be an order for a deferred sale or other transfer options, whilst considering both party’s financial positions and their circumstances.
How does the court decide who should get to live in the property upon separation or divorce?
The court will make a decision based on:
- Children of the marriage/civil partnership under the age of 18, their needs, and whom they live with
- The age of each spouse/partner
- The length of the civil partnership or marriage
- Value of the assets, both before, during and after the civil partnership/marriage (including pensions)
- The earning capacity of each civil partner/spouse and their responsibilities during the civil partnership/marriage (such as looking after the home/child-rearing) and in the future
- Each civil partner’s/spouse’s contribution to the civil partnership/marriage in terms of finances, assets, and any contribution in the future towards the family’s welfare
- The standard of living during the civil partnership/marriage
- If either party has a disability
- Any negative conduct of either party (although this is rare)
- The overall needs of each party.
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