How does the court decide who gets the house in a divorce?

For many divorces, the family home is the largest asset that needs to be divided, and it can often play a substantial role in both parties being able to move on financially.

While often the family home, holiday homes or other properties may seem attractive for one party to retain as it can usually hold sentimental value, this may not always be possible. Every divorce is entirely dependent on each individual circumstances. However, it is crucial that with any negotiations, the house is not looked at as an isolated asset, but is considered income and pension.

While there is no clear cut way to divide the home in a divorce, it is much better to agree on dividing the assets before filing for divorce. However, if you can’t reach an agreement, the court can decide for you.

What are the home rights?

Under the 1996 UK Family Law Act, if you are in a marriage or civil partnership recognised in the UK and your own home, either outright or mortgaged, your home rights will mean that you can stay in the house unless a court order says you cannot be there. If you have already moved out and wish to return, you can speak to the court to legally move back in.

If your partner is trying to sell the home, you can register it as a ‘change’ on the property, with the Land Registry so they cannot sell it, transferred or have a mortgage taken out on it without the knowledge of both parties. Being registered with the Land Registry will ensure that you will be notified if there is any repossession. However, if the person named on the mortgage stops paying the mortgage, the other party on the deed will also be liable to pay it.

While technically both parties are liable to pay the mortgage, this does not mean that you should split the payment in half, this is open to negotiation and should be agreed upon during the separation. Any arrears on a joint mortgage will negatively impact your credit rating, so you mustn’t make any changes to the existing arrangements without discussing it with one of our legal professionals first.

Home rights are only short term. They will only apply until the divorce or dissolution has been finalised and the finance settlement agreement by the courts.

Who gets to stay in the house during the divorce?

Legally, both parties may have the right to stay and live in the home. If both parties bought the house together, they are equally and legally entitled to remain there, until the court approves the financial order. However, the court can order one party to leave if there are domestic violence circumstances, bail conditions or other conditions. Typically, the children’s primary carer will stay in the home until the children are old enough to leave home.

During the divorce, the financial agreement will decide whether the home will be sold and the proceeds split or whether the person who stays in the home can buy the other share.

If you are unsure if you should be the one to leave the marital home or think about asking your partner to go, you should always seek legal advice before taking action.

What happens if the property is in only one party’s name?

While each case is different, the matrimonial home is considered a marital asset even if it is owned by one party. It may not be divided equally, but both parties may still be entitled to a small portion of its value. However, home rights will permit both parties to continue to occupy the marital home regardless of who bought it. This only extends to the house that was lived in by the family. If the property is owned in one party’s sole name, but the property was lived in as the family home, you need to register the home rights with the Land Registry. This will register your interest as a charge on the title register, meaning that the other party cannot sell the property without your knowledge.

How does the court decide who gets the house in a divorce?

If a settlement cannot be decided between the two parties, you will need mediation and the court will decide how to split the assets best. The court will take all circumstances into account, but the first consideration will be given to the welfare of any child under the age of eighteen. Stability is a priority, when possible and financially viable, the court will aim for the children to remain in owned housing.

In addition to the children’s welfare, the courts will also factor in ages, the length of the marriage, the ability to earn, the usual standard of living and the roles that were played during the marriage. For instance, if whether one of the party has sacrificed their career to care for the children.

Once the court has balanced the factors, there are several orders in which the court can decide the fate of the family home. This will be either selling the home and dividing the proceeds, transferring the legal and beneficial ownership from one party to another or postponing the home’s sale to a specific date, e.g. when the children have reached the age of 18.

Final Thoughts

When it comes to divorce, there is no blanket approach to splitting up the assets. Each case will depend on multiple factors. We suggest that you take legal advice on your individual circumstances as soon as possible so that you can make an informed decision on how to best proceed.

Visit Qredible.co.uk to contact one of our specialised divorce solicitors to get expert legal advice.