A divorce is a tough time for anyone who is unfortunate enough to experience it. There are many aspects that cause unrest when a marriage comes to an end, but it’s often the decision over who gets the house that causes the most problems.
The family home is a sanctuary that offers stability and safety, and it’s the place where you’ll have made many of your fondest memories. So during a divorce, it’s natural that both marital parties feel a sense of entitlement to the home and that it can often be the fuel for fierce legal disputes.
In this post, we’ll take a closer look at the various laws and rules that come into play when there’s a dispute over property and what aspects will influence the court’s final decision.
Who Gets the House in a Divorce?
When a marriage breaks down, there are many things that need to be discussed and organised before each party can go their separate ways. A married couple accumulates a wide range of assets during their time together, which will need to be divided fairly when the divorce proceedings are concluded. Unfortunately, deciding who gets the house in a divorce is often the aspect that causes the most stress and hostility.
Unlike with money and other assets, which can be split down the middle with a Clean Break Order, there isn’t a singular rule or standard procedure for choosing who will own a property post-divorce. In some cases, a couple will agree that the best course of action is to sell the property and divide the profit. Others may seek sole-ownership of the current family home or simply can’t agree and will ask the court to make a decision.
Divorces with Children
Although a divorce is undoubtedly a challenging time for both spouses, for children it can be one of the most stressful, confusing and life-changing things events will experience. As parents, it’s vital that you prioritise your children’s needs over your own. In cases where the divorcing parties can’t agree who will get the house, the court will make a decision that ensures the best possible living situation for any children involved, especially if they are a minor.
The primary objective of the court is to minimise emotional trauma and unnecessary stress, which will also help to limit a child’s exposure to hostility. This could mean that the court will transfer ownership of the family home to one parent, which may be ordered as part of an offsetting agreement. This is when one party will get the house, but forfeit the right to an equal division of other assets. In some cases, they may be entitled to reduced spousal maintenance.
Every divorce is unique, with its own complications and vital aspects to consider. If you have children and are going through a divorce, it’s crucial to seek high-quality legal guidance, ideally from a specialist family lawyer. This will allow you to benefit from the experience and expert knowledge of a legal professional who is well-versed in divorce, child law and many other areas of family law — giving you the best chance of achieving a positive resolution and trauma-free experience for your children.
Due to the emotional strain, stress and hostility that can come with a divorce, it’s common for one party to move out of the house to avoid any further hostility. In these instances, it’s important to note that the person who decides to vacate the home still maintains their right to live in or own the property, which is known as ‘home rights’.
Even if you aren’t the owner of the property or you have contributed to mortgage payments, home rights will still apply. With these rights in place, it means you’re entitled to remain in the property unless a court order states otherwise. The home rights of each marital party, 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 register your home rights with the Land Registry, so that your home can’t be sold, transferred or have a mortgage taken out on it without your knowledge
- The right to ask the court to allow you to return to the house, if you moved out
- The right to know of any repossession action taken by your mortgage lender
- The right to join any mortgage possession proceedings taken out by your lender
- The right to pay the mortgage (if the other party stops making the payments)
Unfortunately, little can be done to minimise the emotional impact of a divorce, especially if you and your spouse end your marriage on bad terms. However, by consulting a family lawyer and knowing your rights within your home, you will minimise the potential financial issues that can come with splitting vital assets.