Who gets the house in a divorce/dissolution of civil partnership?

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Bradie Pell

Partner and Head of Family Law at Graysons Solicitors

Bradie is a Partner and Head of the Family Law department at Graysons. She qualified as a solicitor in 2011 and is recommended in the Legal 500.

Latest posts by Bradie Pell (see all)

What happens to the house when a couple divorces/dissolves a civil partnership?

One of the most valuable matrimonial assets that couples have is a family home. Ideally, all assets should be divided out between you and your husband or wife. This includes the marital home, even if only one individual contributed to its purchase or acquisition. The division of assets is usually based on the financial needs of each person.

It can be frustrating for divorcing couples to find out, but unfortunately there is no simple and clear-cut answer; there is no such thing as a ‘standard split’ of assets such as the family home. There is no ‘one-size-fits-all’ formula to apply to different ‘types’ of divorcing couples: it simply depends on the circumstances of the marriage or civil partnership, and not always on the legal ownership of the home nor the mortgage payments.

Of course, it is far better to come to an agreement (such as a separation agreement) between yourselves about how assets should be divided and this is where mediation, arbitration and collaborative law may help you decide.

However, if you can’t agree, then either of you can apply to the court so it can decide for you. You can read more here about how the courts use the law to decide on a fair division of assets , and the stages of the process.

Who gets to stay in the house during a divorce/dissolution?

It doesn’t matter if you rent or own your home, or whether it’s in just one or both of your names, you could both still have the right to live or stay there. In the UK, if you bought your home together, you are both equally and legally entitled to stay there. During a divorce/dissolution, your financial agreement will decide on whether the person who stays in the home should buy the other’s share, whether your house will be sold and the proceeds split or if the person who has primary care of the children should stay until the children leave home.

If you’re not sure whether you should leave your marital home, or if you can ask your partner to leave, always seek legal advice before taking any action. Do not just leave your home because your partner tells you that you should.

How does the court decide who to give the house to in a divorce/dissolution?

In the UK, when a court imposes ‘financial remedies’ to split the assets, it will make the decision based upon:

• Any children under 18 in the marriage/civil partnership, their needs, and whom they live with
• The age of each spouse/civil partner
• The length of the marriage/civil partnership
• The value of assets, both before, during and after the marriage/civil partnership – this can also include pensions
• The earning capacity of each spouse/civil partner and their responsibilities during the marriage/civil partnership (such as child-rearing) and in the future
• What each spouse/civil partner contributed to the marriage/civil partnership in terms of finances and assets (and may contribute in the future towards the family’s welfare)
• The standard of living during the marriage/civil partnership
• If either party has a disability
• The negative conduct of the parties (although this is rare)
• The overall needs of each party

The court will always endeavour to meet the needs of any children first, and then the needs of the partners secondly. For more information, see our pages on financial settlements and financial remedies.

When it has made its decision, the court may issue a property adjustment order as part of the financial settlement. Common orders are:

• Transferring the property from one partner to the other (this could also involve one buying out the other)
• Postponing the home’s sale to a specific date or event, such as when the youngest child turns 18 (this is sometimes called a Mesher or Martin order)
• Selling the house and dividing the proceeds (usually if there are no children, and if neither partner can afford to stay in the home, or both can afford another home)

In the interim, pending a court order deciding a permanent arrangement, there are some short-term legal rights to the family home that can be registered and enforced by either or both spouses/civil partners. These are called home rights, which we explain in more detail below.

What legal rights do I have to my home during a divorce/dissolution?

It is normal for one spouse/civil partner to move out of the family home during separation and divorce/dissolution in order to reduce sources of tension and conflict. This does not mean that the non-resident spouse/civil partner automatically forfeits any rights to the ownership and occupation of the house.

In the UK, both spouses/civil partners have legal ‘home rights’ until a financial settlement is made, or until financial remedies are imposed by the court as a permanent arrangement. Home rights refers to your rights to the family home, even if you don’t legally own it or are not named on the mortgage. This means that neither spouse/civil partner can be forced to leave the matrimonial home, unless there is domestic violence or a court order.

Home rights are useful in the short-term before anything is finalised by the courts, but can’t determine long-term decisions such as who gets to own or live in the property permanently, or whether the property will be sold. There are different types of home rights according to how the property is owned and by whom.

What are home rights?

If you are in a marriage or civil partnership, own your home (either outright or mortgaged) and live in the UK, home rights give you the right to:

• Stay in your home unless a court order specifically excludes you from being there
• Ask the court to allow you to return to the home if you moved out
• Register your home rights with the Land Registry as a ‘charge’ on the property, so it can’t be sold, transferred or have a mortgage taken out on it without your knowledge
• Pay the mortgage (if the person named on the mortgage stops making the payments)
• Know of any repossession action taken by your mortgage lender (providing you have registered your home rights with the Land Registry)
• Apply to be joined in any mortgage possession proceedings being taken by the lender

These rights come from the Family Law Act 1996 (UK) and apply to married couples and civil partners who live in the family home together.

Home rights are short-term: they apply only until the divorce/dissolution, or dissolution of civil partnership, has been finalised and the financial settlement agreed by the courts (which may be before or after the divorce/dissolution itself).

What are my home rights if the house is owned by my spouse/civil partner solely in their name?

Home rights permit both you and your partner to continue occupying your marital home regardless of who bought it. So, even if the house is in your husband or wife’s name, you have a right to continue living there. It’s important to note that this right is only valid in situations where a property is being used by both spouses/civil partners. Essentially, this right doesn’t extend to properties that haven’t been used as a matrimonial home.

You have home rights if your spouse/civil partner legally owns the property solely in their name (as on the register of title or the title deeds at the Land Registry) but it is/was lived in by you and your spouse/civil partner as the family home. If this is the case, it’s really important that you register your home rights with the Land Registry. This registers your rights as a charge on the property, meaning it can’t be sold, transferred or mortgaged without your knowledge.

There are two steps to registering your home rights:

1. 1. Firstly, find out if the home is registered with the Land Registry (and if so, find its title number and in whose name it is registered). You can do this by searching the register here.
   2. a) If the home is registered, you can apply to register your home rights here.

b) If the home is unregistered, you can apply to register your home rights here.

These rights apply only until the financial settlement or financial remedies are finalised by the court, at which point a permanent arrangement will take effect. A matrimonial homes rights notice also comes to an end on the pronouncement of final order, so it is important that a settlement is reached and implemented before the final order is pronounced.

You can set an end date for the agreement when you first make it, or you can choose to end the separation agreement voluntarily if you both agree to. If you both agree in this way, then the safest option is to either have the separation agreement rewritten to explain the date of cancellation, or to have a new document confirming the end of the agreement.

If one of you wants to end the separation agreement and the other disagrees, then you may have to go to court to challenge or defend it.

What happens to a separation agreement when your divorce is finalised with a conditional order?

It depends on whether you’ve used your separation agreement as a temporary measure until you apply to the courts on your divorce, or as the basis of a final agreement to later make legally binding.

You don’t have to get court orders about your children and finances unless you can’t agree on them. If your separation agreement works fine and you both agree on it, you don’t have to turn it into a legally binding consent order. However, it can complicate matters further down the line if you haven’t cemented your arrangements in this way – for example, if one of you dies before your divorce is finalised, or your will conflicts with the separation agreement.

Financial matters and child arrangements are actually decided separately from your divorce process by the courts. They are not the same processes and do not come as a package of measures. Matters concerning children are dealt with by a single ‘child arrangements order’, and may also require additional orders such as ‘prohibited steps orders’ or ‘specific steps orders’. Financial arrangements are decided by a ‘financial order’.  These can be decided before, during or after your conditional order has been granted.

Registering with the Land Registry is also useful in the event that your spouse/civil partner tries to sell the property without your knowledge. A well-detailed document will be added to the title-deed of the property, notifying potential buyers of your right to occupy the property.

More often than not, doing so will deter buyers from considering your property for purchase. While this notice doesn’t accord a non-owning /civil partner any new rights, it helps to give you peace of mind by knowing you can’t be evicted from your own home.

Do I have home rights if the house is in my sole name (i.e. I am the sole legal owner of the property)?

No, but you don’t need them, as your right to the property comes from your legal ownership of it (i.e. you’re named on the register of title, or title deeds). Your spouse/civil partner, who doesn’t legally own the home, has home rights until the financial settlement is finalised/final order obtained and a permanent solution agreed.

What are my rights if we own the property in both names (i.e. as joint legal owners)?

If you’re both registered as legal owners (on the register of title, or title deeds) then your rights to remain in the home come from that legal ownership, rather than from home rights. Home rights don’t apply in the case of joint legal ownership – but your rights as joint legal owners are very similar: you both have the right to stay in the house and return to it if you temporarily moved out.

Home rights apply temporarily until a permanent settlement is reached. However, if your house is in joint names and you can’t agree a permanent settlement between yourselves on what to do with it after your divorce/dissolution, then the court can make a number of property adjustment orders as part of its financial remedies. You can find out more about selling property that is jointly owned here.

Who gets the house in a divorce/dissolution with children?

If you’re getting divorced/dissolving your civil partnership and you have children, your primary concern is probably for their welfare and keeping them in your family home to minimise upheaval. However, just because you have primary care of your children, it doesn’t automatically mean you are entitled to stay in your house.

If you can’t agree who gets the house and have to ask a court to impose financial remedies, then the court will give priority to your children’s needs and welfare in relation to their living arrangements, especially if they are under 18 (subject to the financial resources available to the parties).

The court’s desire to minimise trauma and upheaval to children may sometimes involve ordering that they stay with the resident parent in the family home. This may be as part of an offsetting agreement, where one spouse//civil partner gets the house but no spousal maintenance, or forfeits rights to the other’s pension. Every case is unique in its complications and will nearly always require detailed legal advice.

Do I lose the house if I move out?

Not necessarily. You still have short-term home rights even if you move out, which means you can still return to the home until a permanent arrangement is agreed and formalised by the court.

If you move out and you can’t agree a permanent solution regarding the house after your divorce/dissolve your civil partnership, the courts can decided for you in the form of financial remedies. The court is not biased against the spouse/civil partner who moved out, and will make a decision based on a number of factors.

Can I still keep the house if I have an interest in my spouse’s/civil partner’s pension?

There are a number of different ways assets can be split and offset against each other, including the house and either spouse’s/civil partner’s pension. For more information on splitting pensions and how retaining an interest in your spouse’s/civil partner’s pension could be offset against keeping the house, see our section on pensions on our financial settlement page.

Who is responsible for the mortgage when we are divorcing?

It depends on who is named on the mortgage.

• If you are both named on the mortgage

This is called joint and several liability. You are both responsible and liable for paying the mortgage. That doesn’t mean you are both liable for half each though – if one person doesn’t pay their share, the other can still be held responsible for the whole mortgage. It doesn’t matter if one or both of you pay the mortgage – just that the payments are made.

• If only one of you is named on the mortgage

That person is solely responsible for the mortgage payments. However, if they don’t make the payments (for example, if they move out) then the other spouse/civil partner can pay, if they are a joint legal owner or have home rights. The mortgage lender has to accept these payments as if they’re from the person named on the mortgage.

Being named on the mortgage doesn’t mean that you are the legal owner of the property (especially if the property is in the sole name of one spouse/civil partner), only that you are responsible for making the payments.

Am I entitled to half the house in a divorce/dissolution?

When granting a divorce/dissolution, the way the court splits your assets includes all assets that belong to both you and your husband or wife, not just those that are owned jointly. The way these assets are split depends on the agreement you and your spouse/civil partner come to or what the court decides is fair if you’re unable to decide between you.

The family home is a unique asset to the family courts and is given special treatment to ensure that both parties will be left with a roof over their heads once the divorce/dissolution is finalised. Even if one of you has sole ownership of your home, the courts often hold this with little relevance and other factors are considered alongside this.

In the final settlement, there are various decisions to be made around the division of your family home:

• • The home is transferred from one spouse/civil partner to the other
  • The home should be sold and the proceeds divided in specified percentages
  • The home should be kept in joint names but only one person (the primary carer of children) will remain and the property is sold at a later even such as death, remarriage/new civil partnership or the youngest child finishing education

If my husband/wife/civil partner has a mortgage on a house he/she bought before we were married, is it half mine?

In the UK, this is usually decided on a case by case basis but, in general, if your home is owned by your husband or wife but was lived in as your matrimonial home, it is usually considered a matrimonial asset, even if you didn’t contribute to its initial purchase, it may not be divided equally but you may be entitled to at least a small portion of its value.

However, if the property has never been used as a marital home, you have no right to claim ownership or proceeds from its sale. If you can illustrate to the court that you’re financially worse off without the proceeds from the property then your claim to it may be reconsidered.

Can my wife/husband/civil partner take my house in a divorce/dissolution?

Whether or not you contributed equally to the purchase of your house or not, or one or both of your names are on the deeds, you are both entitled to stay in your home until you make an agreement between yourselves or the court comes to a decision.

Remember that even if you paid the entire mortgage on your own, your husband or wife may still be entitled to a portion of its value. One of the things that will be considered is the duration of your marriage/civil partnership. In a short marriage/civil partnerships (anything less than five years) you’re more likely to retain the assets you’ve brought to the union. However, in a long marriage/civil partnership, any marital assets will be divided fairly by taking other aspects into account.

What happens to the house we own if we are just separating and not divorcing/dissolving a civil partnership yet?

If you don’t want to divorce/dissolution yet, a separation agreement may work best for you. This is where you agree between yourselves the arrangements for your children and any assets (such as your house) in the event of your relationship breaking down, and how you will maintain this agreement after your separation. You will need legal advice as to what is needed in a separation agreement.

Find out more about separation agreements here, how legally binding they are here, and how to maintain or vary your separation agreement here.

What happens to a rented house during divorce/dissolution?

If you’ve lived in a rented house during your marriage/civil partnership, then you’re obviously not the legal owner and so cannot use it as an asset to split upon divorce/dissolution. However, it can still be difficult to decide who keeps the tenancy and stays in the property.

• • • Which spouse/civil partner has to leave the rented house, and who stays?

Whether the tenancy is in the sole name of only one spouse/civil partner, or whether you are joint tenants, you both have home rights until the tenancy ends or the marriage/civil partnership legally ends. This means that in the short term, both of you have a right to live there, neither can force the other to leave, and both of you can return if you temporarily left the home.

• • • Who pays the rent?

Between you, you must ensure the rent is paid by either or both of you. Not paying the rent could result in eviction by your landlord and could contribute to a poor credit rating for both of you.

• • • If you agree on who keeps the tenancy

If you agree that one of you is to keep the tenancy in the rented home, you could assign the tenancy (transfer it to one of you) if both your tenancy agreement and landlord allow it. You could also ask your landlord to end the tenancy and create a new one in the name of the spouse/civil partner who will continue living there.

• • • If you can’t agree who keeps the tenancy

If you can’t agree what to do about the tenancy, you may have to get the courts to impose a resolution for you. You can find out more about this on the Citizens Advice Bureau here.

Can a spouse/civil partner stay in a house even if they are not on the deed?

If your house is solely in your name but your spouse/civil partner has been living there as part of your marital home, they may still be entitled to stay, whether or not you object as the owner. If you are married and your spouse/civil partner is not named as the owner of your home, they have the right to stay and occupy the home under home rights registered with the Land Registry. This is designed to protect their interests in the home until your divorce/dissolution is finalised, by which time, the way the property is dealt with will have been decided.

Will I have to sell my house if I divorce/dissolution?

Whether or not you have to sell your house as part of your divorce/dissolution is decided on a case-by-case basis. Some couples are able to come to an agreement over whether one person should buy the house or stay in the house whilst others have the court decide for them.

There are a number of agreements you can come to when it comes to your home during your divorce/dissolution.The silver lining to this is that if you choose a buy out, you don’t necessarily have to pay your spouse/civil partner half the value of your home. You can both come to a reasonable agreement, depending on other aspects of your joint finances such as savings and investments.

If you and your spouse/civil partner opt for this, it’s important that both parties get written proof of this contract.

1. Stay in the home

When deciding who will get the home, the court takes several factors into account such as:

• • • Welfare of children, specifically who is best suited to caring for them day to day
    • The income, earning capacity and additional financial resources that each spouse/civil partner has or is likely to have in the near future
    • The financial liabilities, obligations and duties that each of the partners has or is likely to have in the future
    • The standard of living that the spouses/civil partners had prior to the breakdown of the marriage/civil partnership
    • The age of each partner and the duration of the marriage/civil partnership
    • The contributions that each spouse/civil partner made or is likely to make in the future for the sake of their family’s welfare
    • The value and benefit of the property to each of the parties, which would end due to the dissolution of annulment of the marriage/civil partnership

2. Postpone the sale

• If the circumstances don’t allow for the immediate sale of a home, you and your partner may agree to postpone the property’s sale. This is particularly beneficial when kids are involved. Retaining the family home can help the children to achieve some stability despite their parents separating.Usually, the parties agree to postpone the property’s sale until the youngest child reaches the age of 18. After this, the home can be sold and the proceeds divided.
  

  Can I sell my house before divorce/dissolution?

  Yes, you can sell your house before starting or finalising divorce/dissolution of civil partnership proceedings and, in fact, it can make divorce/dissolution proceedings much easier and more amicable for you and your spouse/civil partner.

  If you’re still on good terms with your spouse/civil partner, selling your house prior to divorce/dissolution will give you a chance to agree on how your finances will be split between you so you don’t have to worry about haggling with your spouse/civil partner later down the line.

  Divorce/dissolution of civil partnership can be expensive so selling your home beforehand can help to relieve some of the financial burden and help you to get on your feet after the split. However, it is also important to remember that property markets can be unpredictable. This may result in your property taking longer to sell, which can cause issues if you want to start divorce/dissolution proceedings quickly.

  Waiting until after your divorce/dissolution could give you more time to decide on how you want to proceed and to make sure you don’t lose out on any money by selling too quickly or settling on a lower price. However, if you’re not on good terms with your ex-partner, this can turn into a long, drawn-out process and, if one partner continues living in your home, little incentive to sell quickly.

  Can I force the sale of a house during divorce/dissolution?

  The answer to this question depends on your individual circumstances and many factors are taken into consideration, such as: the length of your marriage/civil partnership, the financial needs of both parties, whether there are children involved, equity in your property and whether you’re joint owners of the property.

  If you wish to sell the family home and doing so would be in the interest of both parties, you can force the sale of your house. To do this, you will need to apply for a court order to permit the sale of the house and provide a timeframe during which it should be sold. It’s important to know that these exist for both parties.

  Many factors are taken into consideration before the court will enforce an order of sale. These include:

  • • • The involvement of children
    • • Whether the mortgage has been paid off
    • • The intentions of both parties
    • • Whether you can both afford to buy new homes

  Can you buy a house while getting divorced/dissolving a civil partnership?

  The time after you separate from your spouse/civil partner and before you receive a final court order is still classed as ‘during the marriage/civil partnership’ by the courts. During divorce/dissolution proceedings, the court takes into consideration anything owned by either party, regardless of whose name it is in. So, if you buy a house before you are officially divorced/your civil partnership is dissolved, the value of the house would be taken into consideration when dividing your assets as part of your divorce/dissolution proceedings.

  This means that your spouse/civil partner could make a claim against the value of that house or receive more of your jointly owned assets to take account of the value of your new house. Therefore, it is strongly advisable not to buy another property until your divorce/dissolution is finalised so that your spouse/civil partner cannot claim any rights to the value of your new home.

  Can a divorced couple/couple who have dissolved their civil partnership live in the same house?

  If your marriage/civil partnership is completely dissolved and you are legally considered a single person, you and your ex-spouse/civil partner can continue living together. For many couples, this decision is based around finances and children involved in the relationship as it’s one way to continue co-parenting children and causing as little upheaval as possible. Due to the financial burden of moving, many divorced couples and those who have dissolved their civil partnership continue living together as they transition into being officially apart.

  However, if you are separated but not yet divorced/civil partnership dissolved, continuing to live together can be a costly and time-consuming move.