Divorce and your marital home

What Happens to the Family Home in a Divorce?

In a UK divorce, the family home is often the most significant shared asset. Whether it’s jointly owned or in one party’s name, the court treats it as part of the marital pot. Decisions about the home are guided by fairness, the needs of any children, and each party’s financial situation.

How is it decided who can stay in the home?

If a couple divorces, they will often question who gets the marital home.

If there is a valid pre-nuptial agreement in place then this will usually cover what happens to the home. Where there is not such an agreement in place, then the use of mediation, arbitration or collaboration is always preferable since it is likely to be quicker, cheaper and more amicable. However, if negotations and mediation fails and the parties cannot agree, the court will decide.

Judges aim for a fair outcome, balancing needs and resources. The goal is not necessarily equal division, but equitable distribution based on individual circumstances.

What factors will affect the decision?

The court doesn’t automatically award the home to the person whose name is on the title. Instead, it considers a range of factors under Section 25 of the Matrimonial Causes Act 1973, including:

• The welfare of any children
• Each party’s housing needs
• Financial resources and earning capacity
• Contributions to the marriage (financial and non-financial)

The Courts will have to balance various factors when making their decision and their top priority will always be the welfare of any children under the age of 18. This means that their housing needs (and those of the parent that they reside with) will be a deciding factor.

Each case is unique and the Courts will examine all the circumstances when deciding on how assets are to be divided. They will also want to ensure that both parties have adequate provisions to ensure their housing needs are met and that there is a fair division of assets based on the above factors. It is not necessarily the case that the ex-spouses will get half of the house each (or the equivalent value) and the exact division will depend on the above factors.

What can happen to the matrimonial home?

A spouse will often be concerned about whether they can keep the home and remain in it after the divorce or whether it has to be sold. A lot will depend on the circumstances of the individual case and there are several possible outcomes:

• Sale of the property: The home may be sold, with proceeds divided fairly.
• Buyout: One party may buy out the other’s share.
• Transfer of ownership: The home may be transferred to one party, sometimes with a charge back or deferred sale.
• Mesher or Martin Orders: These postpone the sale of the home until a specific event, such as children turning 18.

Does Ownership Matter?

Even if the home is in one party’s sole name, it can still be considered a marital asset. The court looks at how the property was used during the marriage and whether both parties contributed to it, directly or indirectly.

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Common Concerns and Frequently Asked Questions

Q: Does it matter who owns the house?

A: In short - no. The owner of the house (whether sole or joint owner) will have legal rights. If a spouse is not a legal owner, then they will have “home rights” under s.33 of the Family Law Act 1996 until the financial order is made. This means that generally one spouse cannot kick the other spouse out of the home during the divorce proceedings. The type of ownership does affect who is responsible for the mortgage payments, since it is only the person that is named that is responsible.

Q: What if the home is rented?

A: Both parties have “home rights” regardless of who is mentioned on the tenancy agreement until the tenancy or the marriage ends.

Q: Can I change the locks?

A: Although it may be possible in some circumstances, both parties either have legal rights as an owner or they have “home rights”. Therefore, the locks should not be changed without the consent of the other party and if they are changed they may have the right to have new keys or to have them changed again.

Q: Are my rights affected if I leave the home?

A: Although a spouse will not lose their rights if they move out of the house, there are practical issues that need to be considered and it is always advisable to get legal advice before you do this.

Q: Can I keep the house if it’s in my name?

A: Not necessarily. The court considers the needs of both parties and any children.

Q: Do we have to sell the house?

A: Not always. Alternatives include buyouts or deferred sale orders.

Q: What if we can’t agree on the house?

A: The court will decide based on fairness and the Matrimonial Causes Act 1973.