A common and difficult issue that couples face when they decide to end their marriage or civil partnership is what to do with the family home.
The family home is often the most valuable asset that a couple owns. It may also have sentimental value for both parties and their children.
In this blog post, we will answer some frequently asked questions relating to what happens to the family home when a couple gets divorced or dissolves their civil partnership, and who should move out of the family home.
Who gets to stay in the family home during the divorce or dissolution process?
There is no definitive answer to this question, as it depends on various factors. These include whether the home is owned or rented, whether there are children involved, whether there are any court orders in place, and whether the parties can agree on who should stay in the property.
However, some general principles are as follows:
- If the home is owned by both parties as joint tenants or tenants in common, they both have a legal right to occupy the property until it is sold or transferred to one of them.
- If the home is owned by one party only, the other party may still have a right to occupy the property under the Family Law Act 1996, if they are married or in a civil partnership, or under the Trusts of Land and Appointment of Trustees Act 1996, if they are cohabiting.
- If the home is rented by both parties as joint tenants or tenants in common, they both have a legal right to occupy the property until the tenancy ends or is transferred to one of them.
- If the home is rented by one party only, the other party may still have a right to occupy the property under the Family Law Act 1996 or the Housing Act 1988, depending on the type of tenancy and whether they are married or in a civil partnership.
- If there are children involved, the court will usually prioritise their welfare and best interests when deciding who should stay in the family home. This may mean that the parent who has primary care of the children will be allowed to stay in the family home until the children reach a certain age or finish their education.
- If there are no children involved, the court will usually consider factors such as the financial needs and resources of both parties, their contributions to the property, their conduct during the marriage or civil partnership, and their future prospects when deciding who should stay in the family home.
- If there are any court orders in place, such as an occupation order or a non-molestation order, these will affect who can stay in the family home and under what conditions.
- If the parties can agree on who should stay in the family home, this will usually be respected by the court, unless it is unfair or unreasonable to one of them.
How is the family home divided in a divorce or dissolution settlement?
Again, there is no definitive answer to this question, as it depends on various factors. For example, whether the home is owned or rented, whether there are children involved, whether there are any prenuptial or postnuptial agreements in place, and whether the parties can agree on how to divide the property.
However, some general principles are as follows:
- If the home is owned by both parties as joint tenants or tenants in common, they will usually have to sell it and split the proceeds according to their shares of ownership. Alternatively, they may agree that one party will buy out the other party's share and keep the property. In some cases, they may agree that one party will keep the property until a certain event occurs, such as remarriage or death.
- If the home is owned by one party only, the other party may still have a claim to a share of its value under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004. The court will consider factors such as how long they were married or in a civil partnership, how much they contributed to the property financially or otherwise, whether they gave up any career opportunities for the sake of the marriage or civil partnership, and what their future needs are.
- If the home is rented by both parties as joint tenants or tenants in common, they will usually have to terminate or transfer their tenancy agreement. They may agree that one party will take over the tenancy and pay rent to the landlord. They may also agree that one party will pay rent to the other party who remains in occupation of the property. In some cases, they may agree that one party will remain in occupation of the property until a certain event occurs, such as remarriage or death.
- If the home is rented by one party only, the other party may still have a claim to a share of its value under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004. The court will consider factors such as how long they were married or in a civil partnership, how much they contributed to the property financially or otherwise, whether they gave up any career opportunities for the sake of the marriage or civil partnership, and what their future needs are.
- If there are children involved, the court will usually try to ensure that they have a stable and secure home environment. This may mean that the party who has primary care of the children will be awarded a larger share of the property or be allowed to remain in occupation of the property for a longer period of time. The court may also order the other party to pay maintenance or a lump sum to help with the housing costs of the children.
- If there are no children involved, the court will usually try to achieve a fair and reasonable outcome for both parties. This may mean that the property is divided equally or in proportion to their contributions. The court may also take into account factors such as their age, health, income, earning capacity, standard of living, and any other assets or liabilities they have.
- If there are any prenuptial or postnuptial agreements in place, these will usually be taken into account by the court, unless they are invalid or unfair. A prenuptial or postnuptial agreement is a contract that sets out how the parties intend to deal with their property and finances in the event of a divorce or dissolution. The court will consider factors including whether:
- the parties entered into the agreement freely and voluntarily.
- they had legal advice and disclosure of their financial circumstances.
- they understood the implications and consequences of the agreement.
- there are any changes in circumstances that make the agreement unjust or impracticable.
What are the advantages and disadvantages of selling or keeping the family home?
Selling or keeping the family home is a major decision that can have significant financial and emotional implications for both parties. There are, of course, advantages and disadvantages of each.
Selling the family home
Selling the family home can provide both parties with a clean break and a fresh start. It can also generate cash that can be used to pay off debts, buy new properties, invest, or save for the future.
However, selling the family home can also incur costs such as estate agent fees, legal fees, stamp duty, capital gains tax, and moving expenses. It can also cause stress and disruption for both parties and their children, especially if they have to move to a different area, change schools, or adjust to a new lifestyle.
Keeping the family home
Keeping the family home can provide both parties with continuity and stability. It can also preserve the equity that has built up in the property over time.
However, keeping the family home can also entail costs such as mortgage payments, maintenance fees, insurance premiums, council tax, and utility bills. It can also create complications for both parties in terms of their future plans, such as remarrying, cohabiting, relocating, or retiring.
Who Gets the House? An FAQ
Q: My wife and I are having problems and we are planning on getting a divorce. However, today I received a letter from her solicitor telling me to leave the marital home immediately, otherwise she is going to take me to court.
While I understand we cannot stay living together, is she allowed to kick me out of my house before the divorce proceedings have even begun? Who should move out of the marital home? The house is under a joint mortgage, so surely I have the same rights as her?
A: One of the first steps with progressing in a divorce is deciding which one of you should move out and when. Usually, this is a move that is discussed between the two parties and then decided on together.
In the absence of domestic violence or emotional abuse, your wife has no legal stance to kick you out of the marital home. If this is the case, then a court also cannot force you to leave the home.
For many people, the idea of living in the same home after a divorce can be distressing, but it may be the only possible scenario if finances are tight. In this situation, it may be best to stay in the same home until it is sold. Both of your legal positions and financial interest in the home remain the same, whether or not you are both living there.
There is no definitive answer of who should move out or when during the divorce. This is something that will need to be discussed between you and your wife.
How can I get legal advice on what to do with the family home?
If you are considering getting divorced or dissolving your civil partnership and you are unsure about what to do with the family home, it is advisable to seek legal advice from a qualified family law solicitor.
A family law solicitor can help you understand your rights and options, negotiate with your spouse or partner, draft an agreement or consent order, represent you in court proceedings, and protect your interests throughout the process.
The family law legal department of Howells Solicitors has extensive experience in dealing with the issues relating to the family home in a divorce or dissolution. If you would like to arrange a consultation with one of our experts, please phone 02920 404020 or email info@howellslegal.com.
