Family Home and Divorce – When a relationship breaks down, reducing the effect of it on the children is always the main significance. This may often mean that their continuing stay in the family home is ensured. However, determining where each of you will live and how you will both meet the separate living arrangement costs can be a massive challenge.
When you first separate with your husband or wife, you will have to decide if you want to continue to stay in the family home or move to somewhere else instead. Your options are likely to be:
- Staying the family home while your partner moves out
- Your partner stays in the family home and you move out
- You both leave the family home and start living separately at new places
- You continue living together in the family home, however as separate households
How to decide who should stay in the family home?
This will depend on your individual circumstances and considerations should be given to the following:
- Whether you are married
- Whether you have children
- What other housing option might be available to you.
Knowing your rights, the legal consequences and where to go to seek help can assist you in negotiating this tough process.
Your legal standing
If one of you owns the home
If you are in the early stages of divorce and if the family home is owned by your husband or wife, you may want to ensure that you protect your rights to the family home.
If the family home/property is registered at the Land Registry, you can protect your position by using a ‘matrimonial home rights notice’. If, however, it is not registered with Land Registry, you can still protect your position by applying at the Land Registry for a ‘Class F Land Charge’. If this property is not the family home, you might consider applying at the Land Registry for a ‘restriction’.
Once you have registered your interest, your husband or wife will not be able to sell the property without you being informed of it.
If you own the home together
If you own the home equally as joint tenants, you have an equal share of the property.
Often, you can only sell the property if you both agree to the sale. It may also be possible for one of you to acquire the other’s share.
If you own the home together with the other partner as tenants in common, you may consider leaving your share of the property to someone else in your will, instead of it all going automatically to your ex-partner.
If the mortgage is in joint names
If the mortgage is on joint names, then both you and your partner will be jointly liable for making the mortgage payments. This means that if your partner stops contributing to the mortgage payments, your mortgage lender can request you to make the full payment.
If however, your name is not on the mortgage and you stay in the property, you will be required to maintain the payments.
What if you are renting
If your property is rented in joint names, you both continue to have the right to reside in the property, and equally, you both continue to be liable for paying the rent.
If the rent is only on one name, that person will be responsible for paying the rent, however, both of you will have the right to remain in the property until the tenancy agreement expires and whilst you remain married.
However, once your marriage is formally over, your right to reside in the property ceases. Your partner will have to give you a ‘reasonable notice’ to leave the property.
Prioritising the needs of your children
Even though many of the couples who divorce do not choose to go to a full court hearing to settle down their financial disputes, it is useful to have a knowledge of what the courts may decide with regard to the family home.
If you have children, and especially if your children are young, the court will consider the fact that they need somewhere appropriate to live with each parent. You should bear in mind that the Courts’ approach may vary depending on your own distinct circumstances.
As parents, it is essential that you maintain the needs of your children and prioritise them above everything at all times during this hard process. This includes, of course, disrupting them as little as possible.
As parents, you should be able to make decisions concerning your children and living arrangements between you, rather than directly applying for a court order to determine where your children will live and how much time you will be spending with them. Under these circumstances, it is a good idea to mediate the terms with your partner (through proper mediation process) for the purposes of the best interests of your children.
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