Who Gets the House in a Divorce UK?

Dividing property during a divorce or civil partnership dissolution can be one of the most difficult aspects of separation, both financially and emotionally. The family home is not only the most significant asset many separating couples will share, but it can also hold huge sentimental value.

In this article we look at how property is treated during a divorce, including who may be entitled to stay in the house, and how the courts decide the asset is split. We also look at your legal rights to the home and answer some common questions about who gets the house in a divorce.

The aim when a couple gets divorced or dissolves their civil partnership is that matrimonial assets will be divided fairly. That does not necessarily mean a 50/50 split. The court will consider a range of factors, including:

• The welfare of any children involved
• The income and earning capacity of both parties
• Their financial needs
• The standard of living they had during the marriage
• Contributions to the marriage – both financial and non-financial.

Even if the family home is in only one partner’s name, it can still be considered a marital asset and subject to division.

Both partners have a right to stay in the shared house in the short-term. This is regardless of whose name is on the title. This is known as ‘home rights‘. The court may decide to issue an “occupation order” which enables one party to stay in the home – for the safety or welfare of their children or themselves. These types of arrangements are normally temporary and may change once a final settlement is reached.

You may still have “home rights” under the Family Law Act 1996 even if your spouse or civil partner owns the home on their own. These rights allow you to live in the property until the divorce is finalised or civil partnership dissolved. To protect your rights, we recommend registering your home rights with HM Land Registry. By doing this it prevents the property from being sold or transferred without your knowledge.

If you have children then that will make a difference about who stays in the home. The court will always prioritise the children’s welfare. In doing this, it may decide that the parent who has primary care should remain in the house. This is often at least until the children turn 18 or leave full-time education. In some cases, at this point the house may then be sold (e.g., through a “Mesher Order”) and the equity divided.

No, it does not necessarily work like that. While a 50/50 division may be the starting point in many cases, it often is not the final outcome. The court will focus on what is fair, not equal. For example, if one party is the main carer of young children, they may receive a larger share of the assets to secure suitable housing.

Even if your spouse bought the house before the marriage and it remains in their name, it may still be included in the matrimonial pot, particularly if is the family home, you have contributed financially (e.g. mortgage payments or renovations), and the value of the property has increased during the marriage. The longer the marriage, the more likely it is that the property will be considered a shared asset.

There are a range of options when dealing with property in a divorce or civil partnership dissolution. One of them is selling the house and splitting the proceeds but other possible outcomes include one party buying out the other’s share, transferring ownership to one spouse with or without a charge, delaying the sale until children are older (via a Mesher Order). The outcome will depend on your financial circumstances and what the court considers fair.

Most of the time in most cases, it is considered unwise to sell the family home before reaching a formal financial agreement or court order. By selling the house, it could complicate financial negotiations, perhaps even resulting in penalties or disputes. We would recommend taking legal advice before selling the house.

In some cases, this is possible. If your spouse refuses to agree to sell and negotiations fail, you can apply to the court for an order for sale. However, the court will consider all the circumstances, especially the welfare of any children, before making such a decision.

If you’re separating without divorcing, you may still need to make financial arrangements, including about your home. Speak to your family law solicitor about a separation agreement which will covers who lives in the home, how bills are paid, and what will happen in future. These agreements are not legally binding but can be used to support later court decisions if both parties had independent legal advice.

If you have signed a separation agreement and later decide to go on and divorce, the court may take the separation agreement into account when deciding a financial settlement. You may also want to convert the terms into a legally binding consent order during the divorce proceedings.

If you have joint mortgage, then both of you will remain jointly liable for the mortgage until the financial settlement is complete. This is the case even if one person has moved out. It is vital to keep up with the mortgage payments as failing to do so can damage both your credit ratings. You can agree who will make payments temporarily or ask the court to issue an interim order, particularly if one party has stopped contributing unfairly.

The family home is often at the centre of the division of assets in a divorce or civil partnership dissolution. There is no single rule for who gets the house in a divorce. The outcome will depend on your specific financial and personal circumstances, and those of your spouse. If you have children then their welfare is the priority.

To protect your legal position, we recommend getting legal advice as early as possible. Whether you are negotiating a financial settlement or going through court proceedings, expert guidance can help you secure the best outcome.

If you need advice about your home rights, mortgage responsibilities, or property division in a divorce, our specialist family law solicitors in Milton Keynes can advise and guide you from the moment we start working with you. As well as our head office in Milton Keynes, we also have offices in Bicester, Watford, and London where we can arrange appointments to see you in person. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.