Common anxieties at the time of separation might be:
This article seeks to address the final point – what will happen to the family home on divorce?
Often the family home will be the most valuable asset owned by the parties and the asset that is most prized. The parties are likely to feel a strong connection to the property and dealing with what will happen to the home is often one of the most difficult issues to grapple with on an emotional and sentimental level. As Emily Dickinson said, “They say that“home is where the heart is. I think it is where the house is, and the adjacent buildings.”
We have recently separated – can I ask my spouse to move out of the property?
The starting point is that both spouses are likely to have the right to remain in the family home pending a divorce. This is the case even if the house is in one parties’ sole name. Although it can feel extremely uncomfortable to remain living together after separation, it is often economically the most convenient solution whilst the overall finances are sorted out. Where a separation is amicable, it may be possible to carry on as before with one party moving into a separate bedroom but still eating together etc. If the separation is more contentious then it may be possible to lay down ground rules to make the situation tenable – for example demarking living space into separate zones and having different times for using the kitchen etc.
If finances allow, and if the parties can agree, it may be preferable for one party to move out to separate accommodation. Often a sticking point will be where children are involved and neither party wants to live separately from the children. This can be resolved by agreeing times for the children to move between the two homes. Increasingly, parties are seeking to have a transitional phase known as “nesting” where the children remain in the family home and the parents secure a second property nearby. The parents then take it in turns to stay at the family home and in the second property to minimise the disruption to the children.
In cases where there has been domestic abuse of a serious nature it may be possible to secure an occupation order regulating the occupation of the family home, either by ordering one party to leave the home or by dividing the property into zones and making orders that the parties must keep to their own zone. The court will only make such orders in certain circumstances and having undertaken a “balance of harm” exercise. The test to obtain such an order is high and such an order is considered draconian.
We have recently separated and I am finding it hard to live with my spouse – should I move out?
It is often thought that moving out of a property may be counter-productive. If you vacate the property and the other party remains, it can mean that they are less inclined to get on and deal with the overall situation as they remain comfortably in the family home. It is therefore not advisable if the status quo can be maintained. Of course, your own well-being and mental health must remain a priority and if the situation at home is very difficult it may be better to move out to protect yourself. Vacating the property will not affect your overall rights.
We have recently separated and my partner has moved out – can I change the locks so that they cannot return?
It is not advisable to change the locks to the family home without the consent of the other party. They have a right to occupy the property. In the event that you change the locks without their agreement, they are within their rights to re-enter the property by having the locks changed themselves. Changing the locks can often inflame the situation and reduce the chances of being able to resolve matters consensually.
We have recently separated but the property is in my spouses’ sole name – does this mean I have to move out?
No. Even if the family home is in the name of one party only both parties are likely to have the right to occupy the propertyby virtue of the marriage. It is possible to register a Matrimonial Homes Rights Notice with the Land Registry to protect the right to occupy. It is sensible to register this notice as it also means that the property cannot be sold or re-mortgaged without your knowledge. Registering a Matrimonial Homes Rights Notice is usually a straightforward paper exercise.
We have separated and I am the primary carer for our children – does that mean that I will automatically be able to keep the family home in the divorce?
No. When looking at the long term financial separation the court will identify the assets available for distribution, calculate their value and then look at how the assets can fairly be divided to meet the needs of both parties. The court has a duty to consider all the circumstances of the case and must consider a checklist of factors, which are set out in section 25 of the Matrimonial Causes Act 1973. These factors are:–
In many cases, the family home will be the most valuable asset that the parties own and it may not be possible for it to be preserved. It may need to be sold in order to purchase two separate properties for the parties. First consideration will be given to the needs of any minor children.
We have separated and we both agree that it is in the children’s best interests to remain in the family home until they finish their education – can we do this?
Yes. It is possible, by agreement to agree to divide the equity in the property in specific proportions, but to postpone the sale of the property to a point in the future. For example, the parties may agree that the equity in the family home should be divided equally between them but that they also want the children to remain in the house until they finish their secondary education. An order can be made for the property to be occupied by one party and the children until that point and on that “trigger point” for the property to then be sold and the proceeds of sale divided at that point.
Am I automatically entitled to half of the value of the family home?
Not necessarily. The court will look at the overall financial landscape and will take into account a number of factors in determining how to divide the assets, seeking to achieve a fair outcome. However, the family home is treated as a special class of asset and it is likely that the value will be divided equally, subject to the ability of the court to meet the needs of the parties, with the first priority being given to the needs of any minor children. This may mean that the value of the property is shared in unequal proportions to prioritise the need to secure housing that is suitable for the children.
This article only deals with the situation where couples are married. If parties are unmarried and cohabiting then different rules apply (and are outside the scope of this article). The court’s ability to deal with the division of property on divorce is broad and discretionary and early legal advice on your particular circumstances is highly advisable.
For further information, please contact, Kelly Gerrard, Legal Director in the Family department or, alternatively, telephone on 020 7465 4300.
To learn more about divorce and separation you can download a free copy of our Essential Guide to Divorce and Family Law here.
