Can I live in the family home during divorce proceedings?

In many divorce cases, the matrimonial home is one of the key assets to be taken into consideration when sorting the financial matters arising from a relationship breakdown.

We are often asked by our clients whether they can continue to live in the family home during divorce proceedings. The simple answer to this question is yes.

Married couples have the right to occupy their family home unless a court order, known as an occupation order, states otherwise. These orders, which can be made under section 33 of the Family Law Act 1996, determine who can live in the family home or specific parts of it and can require the other party to leave. In some cases, an occupation order can also exclude a person from the surrounding area of the home. An occupation order may last indefinitely, or the court may set out that it should last for a defined period or until a specified event occurs (e.g. once the divorce is finalised). 

In some situations, spouses may agree to continue living in the family home until the divorce is finalised or the property is sold or transferred. In other cases, it may be more practical for one party to move out, either temporarily or permanently.

If you are married, even if the family home is owned solely by one spouse, the other spouse has the right to live in the property due to their marriage. They can register a home rights notice against the property’s title, protecting their right to live there despite not having a legal interest in the property. This notice also alerts potential buyers to their interest, preventing an onward sale. To apply, a HR1 form must be submitted to the Land Registry; there is currently no fee to make such an application.

The family home can be treated very differently from other assets that the spouses own, and factors such as who the legal owner is can have limited significance. You can read more about the matrimonial home on divorce by clicking here.

Would moving out impact my divorce settlement?

Many people worry that leaving the family home after a relationship breakdown will affect their divorce settlement. However, this is not true.

Moving out of the family home does not eliminate your legal interests in the property. The home will still be considered a matrimonial asset and will be subject to division during the divorce settlement.

If you have left the property temporarily, you have the right to re-enter the property and resume living there. Furthermore, neither party should change the locks without the other’s consent, unless a court order provides otherwise.

If you’re considering or going through a divorce, click below for a free initial consultation with one of our expert divorce solicitors.

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