Who Gets the House in a Divorce with Children?

Divorce is stressful at the best of times, but when there are children involved there are even more things to think about and balls to juggle. One of the immediate thoughts for many divorcing couples relates to where they are going to live. For most of us moving house is unsettling and disruptive but for children, whose parents are separating, the house can sometimes provide the stability they think they are losing.

Our team of expert divorce lawyers in Milton Keynes are here to guide you through the divorce process. In the meantime, this article offers a quick guide to what happens to the family home when you are getting divorced.

Section 25 of the Matrimonial Causes Act 1973 sets out a list of eight factors that the court should consider when looking at a fair division of finances on the back of a divorce. One such factor relates to the judge considering “the financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future”.

Children are a responsibility and the court will therefore take into account the fact that there are children when looking at a person’s housing needs. However, deciding a fair financial split is always a mathematical balance and whether or not to sell the family home is one of the material questions that has to be given careful consideration.

In the short term, whilst consideration is given as to how finances will be split, the children usually stay living in the family home. There is however no fixed right for a parent with children to stay living in the family home when looking at division of finances during / after divorce. If financially it is possible to retain the family home and still split financial assets in a fair way between a married couple then, if both father and mother wanted to stay in the family home, it is likely that a judge would favour the parent who has the main care of the children to retain the family home so that the children have a more stable base.

This of course does not become an effective solution if there is insufficient money to retain the family home or indeed if there is a shared care situation between mother and father.  Essentially, the court will look at all the circumstances of the case, and the children are one of the factors that they take into account. The fact that there are children however cannot dictate the financial split, as often sadly there is insufficient money, when making two separate families out of one financial pot, to retain the family home.

There is no rule to say that the family home has to be sold upon divorce. The court can order that the family home be sold, but if there are children a judge will look at whether the family home can be retained for stability, if one parent wishes to continue living there. However, judges are careful to ensure that, as far as possible, the children do not see one parent living in comfortable, pleasant accommodation whilst the other parent is living in cramped conditions in an undesirable part of town. Again, the bottom line can be whether or not it is affordable to retain the family home whilst ensuring a fair financial split between the parents.

A few years ago there was a popular type of order whereby a parent with children would often stay in the family home until certain future conditions were reached, one of those typically being the youngest child reaching the age of 18 / finishing full time education, when the family home would be sold and a pre-agreed percentage of the sale proceeds would be paid to the parent who had left the home some years earlier. This type of order is known as a Mesher Order. Whilst it is still possible to obtain a Mesher Order from the court, they are now not so popular.

Judges are less ready to easily make such an order now as it was found that the stability in living arrangements provided by the Mesher Order was only temporary, and the disruption for the parent who had remained living in the family home, on being forced to sell the house at a later date, in an unknown future financial situation, could be substantial. The answer to this question therefore is that the family home may well have to be sold before the children are 18 if there is insufficient money to retain it.

In conclusion, the fact that there are children within the marriage is just one of the factors taken into account when looking at the overall financial circumstances upon division of assets during/post-divorce. The court will be concerned to take into account the ‘children’s housing need’ and, if the children spend more time living with one parent, then that parent’s housing need may take priority over the other parent’s housing need if there are money struggles. However, it is the children’s housing needs that are more important than the need to retain the family home for the children if the amount of money available is an issue.

Ready to take the next step? As leading divorce lawyers in Milton Keynes, our team of family law specialists can advise and guide you from the moment we start working with you. We also have offices in in Bicester, Watford and London. 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.