In a lot of marriages, the family home will be the biggest asset that you own. As well as being important financially, it may also represent security for your children and you may have an emotional attachment to the property. So, who gets the marital home when you divorce? Do you have to move out? Will you have to sell the house? And do you have to go to court to decide who gets the family home? Keep reading for answers to these questions and more.
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Does it matter if we have children?
Everyone’s circumstances are different, which means there are no hard and fast rules when it comes to deciding what happens to your marital home when you divorce.
One of the most influential factors will be whether or not you have children. In any divorce in England and Wales, the welfare of your children is a priority. So, ensuring that your child has a secure home and that they are not subjected to unnecessary upheaval will be a key part of the divorce process.
When a court becomes involved in deciding who keeps your marital home, they will often award the right to remain in your home to the parent who is the primary caregiver for your child. This is intended to cause the least amount of disruption to your child.
If you’re the other parent, what happens to your share of the property depends on your personal situation (see the section below).
Who pays the mortgage if we are divorcing?
If you are divorcing and you have a mortgage secured on your home, your mortgage lender will require you to keep up your repayments.
If you are both named on the mortgage, then you are equally responsible for all the mortgage payments, not just half. This is called ‘joint and several liability’ and means that it doesn’t matter which one of you pays the mortgage as long as the payments are made.
If only one of you is named on the mortgage, then you are entirely responsible for the mortgage payments. However, if that person doesn’t make the payments then the other person can pay if they are a joint legal owner or they have ‘home rights’ (see the section below). Your mortgage lender must accept these payments.
If you’re divorcing and one of you is planning to move out you may have to come to an agreement with your ex as to who continues to pay the mortgage.
Do we have to sell the house if we’re divorcing?
No, not necessarily. However, divorce and property rights can be complicated and so it will depend on your circumstances.
Bear in mind also that it’s not just financial considerations that will determine whether you must sell the property. For example, it may be disruptive to your child to insist that they move home if they are about to sit exams.
In some situations, you may decide to stay in the property and your ex may receive their share of the property value when you eventually sell your home – perhaps after your child has completed their studies.
Do I have to move out of the house during the divorce?
No. If you are the joint legal owner of your home, you have the right of entry and occupation until a financial order is made by the court. You can’t be forced to move out unless there is a court order, or unless there are specific circumstances (for example, allegations of domestic violence).
You can’t insist that your ex moves out of the property even if you consider the divorce to be their fault. Even if they have committed adultery or their behaviour is unreasonable, you cannot force them to leave the home if they are a legal owner.
If you temporarily leave the property you retain the right to return to it. If the locks have been changed you can negotiate re-entry and, if necessary, instruct a locksmith to assist you in getting back in. You may also have to apply to the court for an order to re-establish your right to enter.
If your home is owned by just one spouse, the other can still live there if they are married or in a civil partnership thanks to their ‘home rights’ (see the section below).
What are ‘home rights’?
If you are married or in a civil partnership, and you own your home (including with a mortgage), your ‘home rights’ give you the right to:
- stay in your home unless there is a court order that states otherwise
- request that a court permits you to return home if you have moved out
- register these rights with the Land Registry so your home can’t be sold, transferred or have a mortgage taken on it without you being notified
- pay the mortgage if the mortgage holder stops making payments.
Your home rights only apply in the short-term. Once your divorce or dissolution, and the court-approved financial settlement have been completed, home rights cease to apply.
What if the property is in my ex’s sole name?
Don’t assume that you will have to immediately move out of the property if your name is not on the mortgage or the property title deeds. You have home rights if you lived in the property with your spouse as the family home, even if your home is legally owned solely in your ex’s name.
If this is the case, you should register your home rights with the Land Registry. This ensures your home can’t be sold, mortgaged or transferred without you finding out.
If your ex owned the home before you got married, and you have lived in it as your marital home, a court will normally treat it as a matrimonial asset. However, this doesn’t necessarily mean that the asset will be divided equally.
What if the property is in my sole name?
You don’t need home rights if you own your home, as your rights to the property come from your legal ownership.
If you purchased the property, you should not assume that you will be entitled to continue living there following the divorce, or that you will be entitled to all of your home’s value. A court may decide that ownership should pass to your ex, perhaps because it is also your child’s home.
If you are divorcing, your property is considered part of your matrimonial assets even if it is in your sole name. The fact that you own the property won’t play a part in the division of assets, although you can demonstrate that you brought the property to the marriage when you are agreeing a financial settlement.
What options do we have regarding the family home?
When you divorce you normally have three options regarding the marital home:
- you sell the house and the proceeds are divided between you
- one of you buys out the other spouse
- you defer the sale. Here, one of you would keep the home for your children until a specified time, and then the house would be sold and the proceeds divided.
Your specific circumstances will determine which is the right option for you. If you don’t have children, then you may simply decide to sell the property and split the proceeds. If you do have a child, then one of you may want to stay in the property to minimise the disruption to your child.
Do we have to go to court to decide who gets the house?
No. You can agree between yourselves what happens to your marital home when you get divorced.
Options you may consider include:
- selling the property and dividing the assets as you agree
- one of you remains in the property and buys the other’s share
- the value of the property is transferred to one of you while the other gets alternative assets of the same value
- you defer the sale, and one of you retains an interest in the property and gets a share of the proceeds when your home is eventually sold.
If you and your ex agree on arrangements for your marital home, you can ask the court to make the agreement legally binding.
If you can’t agree, you can try to reach a decision through mediation. A trained mediator will oversee the process and you can voice your concerns and try to reach an agreement.
If you still can’t agree, then you can apply to the court for a decision to be made.
What factors will the court consider when deciding who gets the house?
If you can’t decide on how to deal with your marital home, you can apply to the court to make a decision.
If you have children, then their welfare will be the first priority. The court will try and ensure that your child’s life is disrupted as little as possible, which sometimes means staying in the family home.
Other factors that will be considered are:
- how long you were married
- the value of all of your assets, including property and other assets
- your earning capacity and the earning capacity of your spouse, both in the past and in the future
- your responsibilities during your marriage and in the future – for example whether one of you gave up work to look after your child
- your respective ages
- what each of you contributed to the marriage in terms of money and assets
- your standard of living while married
- your overall needs
- your conduct, in extreme cases.
What is a Property Order?
Once the court has considered the factors above, there are a range of orders which they can make relating to your marital home.
A property order might include:
- an order that you sell the property and split the proceeds
- transferring ownership from one of you to the other (this may include one of you buying the other’s share)
- deferring the sale of the property to a specific date, for example when your child turns 18 or when they complete their A-levels or university course.
While the court is considering its decision, there are some interim legal rights to the marital home that can be applied for by each spouse. These are ‘home rights’ as outlined in the sections above.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.