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Whether you’re considering a divorce, annulment, dissolution or nullity, what happens to any shared assets you have with your partner is likely to be at the top of your list of questions. 

Here, we explain the process of dividing assets and delve into the laws surrounding divorce, house ownership and a FAQ regarding the family home.


Identifying and Valuing Assets 

During the divorce process, you will be tasked with dividing any shared assets. In order to do this accurately, your solicitor will arrange for your assets to be assessed and valued. For example, an up-to-date valuation will be obtained for any property belonging to either partner. 

Having the house in your name will not have any bearing on who gets the house after a divorce. This is because this is considered to be a part of your marital assets and a divorce settlement considers the combined total. 

However, it is important to show what each partner brought to the marriage and a property bought before matrimony should be highlighted. 


What Are Your Options When You Have Shared Ownership? 

If both partners own the home, then you have a few options. These include: 

A Buy Out 

This is when one spouse buys the other out and keeps the house. This will involve the transfer of the deeds from joint names to one sole name and may require a new mortgage.   

Selling Up

If you’re looking for a clean start with a fresh slate, selling the property and dividing any equity could be the best option for you. However, it is important to remember, a property may not sell immediately and therefore funds may take some time to be secured. 

A Mesher Order

If children are involved, the dividing of assets will likely be skewed towards the partner that has the majority of custody. British law puts any dependants’ interests first and tries to minimise disruption to their lives, ensuring they maintain the same standard of living after a divorce ,as before. 

As a result, the family home is usually given to the parent with which children spend the most time, regardless of whose name is on the deeds or tenancy agreement. 

If you live in England or Wales and are parents, then you may be able to apply to the court for a Mesher Order which can defer the sale of the family home. This order states that the family home cannot be sold until a set date, for example when the youngest child turns 18, and that net sale proceeds should then be divided in accordance with the court order.  

You may also be able to apply for a Martin Order, which defers the sale of the house and gives a spouse the right to occupy the property for life or until remarriage. These are not particularly common, however can be used when no dependants are involved and the other spouse doesn’t need the sale funds immediately. 


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 proceeding 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. Normally 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 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.


Have More Questions About Who Gets to Stay in the House During a Divorce?

If you and your partner have been separated for some time and you’re now considering instructing divorce proceedings or are already going through the process and are confused about what happens regarding the marital home, then get in touch with our experienced divorce solicitors.

We offer a straightforward and cost-effective legal service to ensure your divorce and any questions regarding separation are dealt with as smoothly as possible.

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