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Who Gets The House In A Divorce?

Key Points

  • There is no standard split of assets for divorcing couples, it depends on many factors, including other assets like pensions and income
  • It’s best if you can reach agreement between yourselves but if you can’t, you can apply to have the court decide for you
  • The court can make property adjustment orders to transfer the home, postpone its sale or order its sale
  • In the short term, usually either or both of you have ‘home rights’ to stay in or return to the family home, until a permanent order is made
  • If you have children, any court decision regarding the family home will consider their welfare first, and then both spouses next
  • If you move out, this doesn’t count against you in the eyes of a court

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What happens to the house when a couple divorces?

This can be incredibly 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 the division of assets 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 for the courts to 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.

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

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

  • Any children under 18 in the marriage, their needs, and whom they live with
  • The age of each spouse
  • The length of the marriage
  • The value of assets, both before, during and after the marriage – this can also include pensions
  • The earning capacity of each spouse and their responsibilities during the marriage (such as child-rearing) and in the future
  • What each spouse contributed to the marriage in terms of finances and assets (and may contribute in the future towards the family’s welfare)
  • The standard of living during the marriage
  • 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. These are called home rights, which we explain in more detail below.

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

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

Legally, both spouses have ‘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 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 and own your home (either outright or mortgaged), 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 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, or dissolution of civil partnership, has been finalised and the financial settlement agreed by the courts (which may be before or after the divorce itself).

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

You have home rights if your spouse 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 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. 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.
  3. 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 decree absolute, so it is important that a settlement is reached and implemented before the decree absolute is pronounced.

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, who doesn’t legally own the home, has home rights until the financial settlement is finalised/decree absolute 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, 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.

Do I get to keep the house if the children live with me?

Not necessarily. However, 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 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 for the fate of the house after your divorce, the courts can decided for you in the form of financial remedies. The court is not biased against the spouse 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 pension?

There are a number of different ways assets can be split and offset against each other, including the house and either spouse’s pension. For more information on splitting pensions and how retaining an interest in your spouse’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 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), only that you are responsible for making the payments.

What happens to the house we own if we are just separating and not divorcing yet?

If you don’t want to divorce 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?

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

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

Even if the tenancy is in the sole name of only one spouse, 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 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.

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