Family home

What happens to the family home in a divorce will often be a key concern. There are legal, practical, financial and probably also emotional issues to be considered.

When you are considering or starting the process of divorcing, one of the first things you'll need to sort out will be your immediate and longer term living arrangements. You and your partner are both going to need somewhere to live and, if you have children, somewhere they can be comfortable and happy when they're with you.

Although the ability to afford separate homes, either in the short-term or when everything has been finalised, is not generally an issue in the cases we advise on, this doesn't mean that decisions about property and divorce are necessarily any easier. The same questions arise. Should one of you move out and if so how does that affect your legal rights?  Does it make any difference whose name the home is in? If you stay in the house together how does that impact on the divorce process itself? Who pays the mortgage and will that be taken into account in the eventual settlement? Will the house have to be sold? Most importantly, how can you minimise the disruption for your children?

There's a difference between a house and a home. If you feel it's about more than simple financial value we'll understand and listen.

Although there's often an emotional angle to decisions about the marital home on separation and divorce these are a few of the legal and financial points to bear in mind.

  • In most cases children need a home with both parents and the aim must be to disrupt them as little as possible. The division of property, including the family home, and other assets on divorce needs to take this into account
  • Unless there's third party involvement, generally speaking it doesn't matter long term whose name the property is in. Whether it's eventually sold or kept by one of you it's an asset that will be taken into account
  • Moving out doesn't affect legal ownership or entitlement to a fair share of the property's value in the divorce settlement. However, you can still get a divorce if you both stay in the family home while it's going through. If this can be managed without it being damaging to you or the children then it might make financial sense
  • Who paid for the family home originally or for the mortgage will not normally be important.

As with everything, agreeing arrangements rather than fighting over them will keep financial and emotional costs down.

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