When a relationship breaks down, one of the first practical questions is often what happens to the family home. For many couples separating, it’s their largest financial asset, but it is also much more than that. It may be where the children have grown up, close to their school, friends and wider family, and a place that one or both partners understandably feel reluctant to leave.
A common concern is whether one person can simply tell the other to move out. The answer is not always straightforward and depends on factors including whether you are married or in a civil partnership, who legally owns or rents the property and the circumstances surrounding your separation.
Does it matter whose name is on the house?
If you jointly own the family home, both occupants will generally have a right to remain in the property while the longer-term arrangements are being resolved. However, matters can become more confusing when the house is registered in only one person’s name.
Being absent from the title deeds does not necessarily mean that a husband, wife or civil partner has no rights over the property. Under the Family Law Act 1996, a spouse or civil partner may have ‘home rights’ in relation to the matrimonial home even when their partner is the legal owner. These rights can, in certain circumstances, allow someone to continue occupying the home and prevent their spouse from simply excluding them from it without the involvement of the court.
It may also be possible to register home rights with HM Land Registry. This can provide additional protection, including helping to prevent the property being sold without the non-owning spouse being aware of it. The position can be very different for unmarried couples, however, which is why it is important to take advice based on your individual circumstances.
Can I make my husband or wife leave?
Separation itself does not automatically give one spouse the right to force the other out of the family home. Even where the relationship has become difficult, changing the locks or attempting to remove a spouse from the property can create further legal problems.
There are circumstances in which the court can decide who should be permitted to live in a property. An occupation order, for example, can regulate who is entitled to occupy the family home and may be particularly relevant where there are concerns about domestic abuse or someone’s safety.
Where immediate safety is not an issue, however, couples will often need to find an interim arrangement while their divorce and financial settlement are being dealt with. That might mean continuing to live under the same roof temporarily, although this is understandably not suitable for everyone.
What if there are children?
The needs of children can be particularly important when decisions are being made about the family home as part of a divorce settlement. Maintaining stability may be a priority, particularly if moving immediately would involve changing schools or disrupting established routines.
That does not necessarily mean the parent who primarily looks after the children will automatically receive the house. The family court has to consider a range of circumstances when determining a financial settlement, including the parties’ financial resources and needs.
In some cases, keeping the existing home may simply not be financially realistic. Maintaining two households after separation is usually more expensive than maintaining one, and selling the property may ultimately be necessary to allow both parties to find suitable accommodation. In other circumstances, arrangements may be possible that allow one person and the children to remain in the property, either permanently or for a particular period.
What happens to the mortgage?
Moving out of the family home does not automatically remove someone’s financial responsibility for it. If you have a joint mortgage, both borrowers will normally remain responsible to the lender for the mortgage payments regardless of who is actually living in the property. This can create difficulties after separation. One person may move elsewhere and find themselves paying towards both their new accommodation and the former family home.
It is therefore important to distinguish between the immediate question of who lives in the house and the longer-term question of what happens to the property and mortgage.
Should I move out before the divorce is settled?
There is no single, definitive answer. For some people, moving out is the most practical way of reducing conflict and allowing both parties to begin moving forward. In other cases, leaving the property without first understanding the financial and legal implications may complicate matters.
Moving out does not automatically mean that you give up your financial interest in a jointly owned property. Equally, remaining in the property does not automatically mean that you will ultimately be entitled to keep it. Before making a significant decision, particularly if you are being pressured to leave, it is sensible to understand your position.
What ultimately happens to the family home?
The family home forms part of the wider financial arrangements that need to be resolved following divorce. Possible outcomes can include selling the property and dividing the proceeds, one spouse buying out the other’s interest or transferring the property to one spouse as part of the overall settlement.
The appropriate solution will depend on the available assets, income, mortgage affordability, housing needs, and the needs of any children. It’s also important to ensure that any agreement reached about the house forms part of a legally binding financial settlement. An informal agreement between former spouses may not provide the certainty either person expects.
Getting advice early can help
Questions about the family home can quickly become emotionally and financially difficult. Understandably, people are often worried that leaving means losing their rights, or that remaining in the property means they can never be required to sell it.
Neither assumption is necessarily correct. Obtaining advice early can help you understand your right to occupy the property, protect your financial position and consider how the home fits into the wider divorce settlement.
At Townsend Family Law, we can advise you on the family home and the wider financial implications of separation and divorce, helping you work towards an arrangement that provides clarity for the future.
