Divorce is a stressful experience for both parents and children, with one of the biggest concerns being the family home. Determining who gets the house in a divorce can be complicated, especially when children are involved. Stability is crucial for children, making the decision even more significant.
In this guide, we’ll explore how property is divided in a divorce, what factors influence who stays in the house, and how the courts decide who gets the house in a divorce with children based on the best interests of said children.
Who Gets the House in a Divorce UK?
In the UK, property division in divorce is based on fairness, rather than an automatic 50/50 split. The courts prioritise the welfare of children when making housing decisions. In many cases, the primary caregiver may be allowed to remain in the home to provide stability for the children.
Factors that influence who gets the house include:
- The financial situation of both parties.
- The needs of the children.
- Who the primary caregiver is.
- Whether the house is jointly owned or solely owned by one party.
- Alternative housing options available to each spouse.
The court may decide to transfer ownership of the home, postpone its sale until the children are older, or divide the equity between both parties.
If I Leave the Marital Home, What Are My Rights?
Leaving the marital home does not mean you forfeit your rights to it. However, it can impact your position in negotiations and court proceedings.
Leaving Marital Home Before Divorce
Many people leave the family home before the divorce is finalised due to conflict or emotional stress. If you are considering leaving, it is important to:
- Seek legal advice to understand your rights.
- Ensure continued access to your children.
- Keep records of financial contributions towards the home.
If your name is on the mortgage or deed, you retain a legal interest in the property, regardless of whether you live there.
What Are My Rights if the House Is Owned by My Spouse/Civil Partner?
If the house is in your spouse’s name only, you may still have legal rights, particularly if:
- You contributed financially to the property.
- You have dependent children.
- You have a registered Matrimonial Home Rights Notice, which prevents your spouse from selling the home without your consent.
Courts assess whether you have a beneficial interest in the home based on financial and non-financial contributions, such as childcare or homemaking.
Who Is Responsible for the Mortgage When We Are Divorcing?
If both names are on the mortgage, both parties remain responsible for payments, even if one person moves out. Stopping mortgage payments can harm credit scores and create legal complications.
Options include:
- One spouse taking over mortgage payments and ownership.
- Selling the home and splitting the proceeds.
- A Mesher Order, which delays the sale of the home until the children reach a certain age.
Speaking with your mortgage lender and legal advisor can help determine the best course of action.
What Happens to Inherited Property During Divorce?
Inherited property is generally treated as non-matrimonial property, meaning it may not be subject to division. However, exceptions exist if:
- The inherited property has been used for family purposes (e.g., the family home).
- The inheritance was received during the marriage and mingled with joint assets.
- One spouse is in financial hardship and requires support.
Courts assess each case individually, considering the needs of both spouses and any children involved.
What Happens to Investment Properties in a Divorce?
Investment properties, such as rental homes or holiday lets, are considered marital assets if acquired during the marriage. Courts may order:
- A sale and division of profits.
- One spouse to retain ownership while compensating the other with an equivalent asset.
- Rental income to be shared as part of the financial settlement.
If the property was acquired before the marriage or inherited, the courts may treat it differently, depending on financial needs and contributions.
Contact Us
Divorce and property disputes can be complex, especially when children are involved. At Connexus, we specialise in divorce settlements, property division, and family law matters.
For expert legal guidance, contact us or call 0300 303 3629 to discuss your case.
For more information, visit our Divorce and Family Solicitors page.
