Who Gets the House in a Divorce?

Paperhouse cut in two by a pair of scissors with a question mark in the middle on either side of the paper house is a male and female paper figure, signifying the division of assets after a divorce. The scissors is visible in the picture

For happily married couples, a home is full of memories and good times, and is a place to raise a family. But when a marriage breaks down, the family home becomes an asset for the taking and can be a catalyst for hostility. So who gets the house in a divorce?

Over the course of a marriage, a couple will accumulate a range of shared funds, assets and property. Although this may be beneficial at the time, if a relationship breaks down and results in divorce, dividing marital assets can prove to be extremely difficult.

There’s a lot to consider when it comes to deciding who gets the house in a divorce. If one party had legal ownership prior to the relationship or if children are involved, this may heavily influence the court’s decision.

In this post we’ll discuss the role of the marital home during a divorce and what the court will take into account to establish which party will receive the house (and any other property).

What Happens to the House in a Divorce?

Without a doubt, a divorce is one of the most stressful and emotionally-charged situations a person can experience. It’s only natural for someone in the midst of it to want the experience to be over as soon as possible. While you may be able to divide your finances equally and go your separate ways with a ‘clean break order’, establishing who gets the family home is often the factor that causes the most problems.

Unfortunately, there’s not a simple answer or standard procedure when it comes to the ownership of the family home post-divorce. This can be very frustrating for couples who would prefer a swift resolution. In this case, your best option is to get your family lawyer to draft a ‘separation agreement’ if you are not yet ready to divorce, or a ‘Consent Order’ if you are ready to divorce where you and your spouse can agree on how all your joint assets will be divided.

If you’re unable to agree, then this decision will be made by the court, which will take a range of aspects and evidence into account to determine a fair resolution.

Understanding ‘Home Rights’

It’s commonplace for one of the parties to move out of the family home during a separation or divorce to prevent any unnecessary conflict or hostility. But it’s important to note that the person leaving the home doesn’t in any way forfeit their rights to the house. According to the law, both spouses have ‘home rights’ until a financial settlement has been made.

Home rights apply even if you don’t own the property or have your name on the mortgage. This means you are well within your rights to remain in the property unless you have been ordered not to by the court or there is evidence of domestic violence. The home rights of each spouse, according to the Family Law Act 1996, are as follows:

  • The right to stay in your home unless a court order specifically excludes you from being there
  • The right to ask the court to allow you to return to the house if you moved out
  • The right to register your home rights with the Land Registry, so it can’t be sold, transferred or have a mortgage taken out on it without your knowledge
  • The right to pay the mortgage (if the other party stops making the payments)
  • The right to knowledge of any repossession action taken by your mortgage lender
  • The right to join any mortgage possession proceedings taken out by your lender

What if Children Are Involved?

When children are caught up in a divorce, it can cause a significant amount of stress, emotional trauma, and confusion. This is something that the courts don’t take lightly — every decision is made with the child(ren)’s best interests in mind. If you can’t agree who will get the house, the court will prioritise your children’s welfare and needs when determining their living arrangements, especially if they are under 18.

The court’s primary aim is to minimise unrest and emotional trauma, for the children. This may mean the Court Orders the family home to be transferred to one parent. This may be ordered as part of an offsetting agreement. This is where one spouse will get the marital home, but forfeits the right to a certain division of other assets or even, in some circumstances, reduced spousal maintenance. Every divorce case is different and has unique complications, so we’d always recommend seeking a divorce solicitor who is knowledgeable and experienced in family law.

Are you getting a divorce and are concerned about your rights to the marital home? We can help you! KMJ Solicitors is a specialist family law firm with an experienced and knowledgeable team who will help you through every step of the divorce proceedings. Get in touch today to schedule a FREE, no-obligation consultation.

Clayton spent five years working in family law with a firm in Australia before moving to the UK in 1999. He deals with all aspects of family law, specialising in all family matters, offshore trusts, company structures, international law, prenuptial agreements, high net worth cases and cohabitation law.