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Should I stay or should I go? The family home in divorce by Kai Whicker

In the majority of cases, the family home is the most valuable asset within a marriage – and not only financially. It also often carries an emotional, nostalgic value that parties can be reluctant to let go of. In the midst of coming to terms with their marriage ending, spouses may struggle with the idea of losing those treasured four walls as well.

As family lawyers, a question we are commonly asked by our clients caught up in divorce proceedings, or contemplating a split, is whether or not they should vacate the family home. Clients regularly hear myths and half-truths from friends, colleagues or online forums which leave them confused and distressed about their living situation and what might happen if they leave their home.

A separating spouse may wish to leave the family home for a variety of reasons, but before taking the drastic step of doing so, the implications should be carefully considered with a specialist family lawyer.

Who should leave if my spouse is abusive?

There may be circumstances where a party may feel compelled to leave their home through no fault of their own. For instance, a spouse suffering from domestic abuse may need to escape the home to secure their, or their children’s safety. Under such circumstances, urgent advice should be sought and steps should be taken to seek protection. When domestic abuse is present, injunctions may be available. A non-molestation order and occupation order may be necessary to sort out who lives in the house and how it is occupied;  how the spouses should interact; and in some cases, arrangements for the children. Such orders could potentially enable the victim to remain in the family home while the abusive spouse is excluded.

It’s my spouse’s fault that we are getting a divorce, shouldn’t they leave?

In less extreme circumstances, one spouse may feel uncomfortable remaining in the same property if they consider the marriage breakdown to be the fault of the other party. It is a common misconception that either spouse can rightfully exclude the other on the basis of some perceived wrongdoing, such as adultery or unreasonable behaviour. Whilst one party may consider it their moral obligation to leave the family home, if they leave hastily without taking advice, they may later regret their decision to do so.

When a property is jointly owned by spouses, as legal owners both have the right to occupy it unless otherwise ordered by the court. If one party temporarily vacates the property, they will still have the right to return to the property and the other party is not entitled to keep them out. If the locks are changed, the excluded party is within their rights to instruct a locksmith to assist re-entry, but they will need to be cautious, as any damage caused by breaking in could leave them guilty of causing criminal damage. It is therefore advisable to negotiate re-entry, with the assistance of a solicitor if necessary. You may also need to consider seeking an occupation order to re-assert your rights to enter.

It’s my house, can’t I decide who remains?

If a property is owned solely by one spouse, the non-owning spouse may feel vulnerable and under pressure to leave the home as they don’t legally own it. But, provided the couple are married or have entered a civil partnership, the non-owning spouse is protected by their ‘home rights’, including the right to remain in the property. A non-owning spouse may register these rights and by doing so make it apparent to any prospective purchaser or mortgage company that it is not only the legal owner of the property who has rights to consider. The decree absolute in divorce or the dissolution of a civil partnership will, however, bring those ‘home rights’ to and end unless they are extended via an application to the Court.

When considering the division of assets, the Courts will not normally be concerned by whether the property was legally owned in their joint names or in one spouse’s sole name. Instead they will view the family home as a matrimonial asset that can be subject to sale or transfer if necessary to meet the parties’ needs.

Why should we both remain?

For a few practical reasons it may be beneficial to resolve matters before leaving the family home. For instance, it will be more costly to run two households. The money to pay for the second will inevitably reduce the ‘matrimonial pot’ which will ultimately need to be shared to meet each parties’ needs. Generally, divorce proceedings can be concluded within six to 12 months but in some circumstances, particularly where court proceedings are required and there are difficult issues to contend with, they can take considerably longer. If so, the costs of running the second home could be substantial.

And if the spouses are separating amicably, it can be helpful to both remain in the property until matters are resolved to avoid unsettling any children of the family and to get properly prepared for separation.

Will I have to pay the full mortgage repayments if I remain?

If both parties are named on the mortgage, both will remain jointly liable for any payments, regardless of whether one party vacates the property. If one party stops paying the mortgage, the other can be asked by the lender to pay the full amount. If a party stays in the home but is not named on the mortgage, the payments will still need to be made to avoid affecting both parties’ credit ratings and prevent any risk of repossession. The lender is obliged to accept any payments made by the remaining party, even if they are not named on the mortgage.

If I leave, will I receive a worse financial settlement?

Leaving the family home does not mean automatically surrendering your rights to the property. As discussed earlier, regardless of who is living there at a particular time the Courts will usually still consider the couple’s  former matrimonial an asset to be divided between the divorcing spouses. Despite this, leaving the family home can still have financial implications in some circumstances – if, for example, it would alter the Court’s view of a person’s needs. Proper advice should therefore be sought before deciding to permanently vacate the property.

Will remaining affect the children?

Remaining in the family home may have an impact on your children and any future proceedings concerning them. If they’re witnessing are high levels of acrimony, then the Courts may need to consider ordering one party to move out to protect their emotional welfare. Leaving the property may however, significantly reduce the time the parent in question spends with their children, and that could potentially affect arrangements concerning them in the courtroom.

Remaining in the family home or leaving is not a decision to be taken lightly and various factors must be considered when trying to work out what’s in your best interests. Should you find yourself considering leaving, it is vital that you seek specialist advice from a family lawyer in order to  properly consider your options. They will be able to offer advice on your individual circumstances.

Kai was a solicitor in the Stowe Family Law St Albans office.  He has experience dealing with all areas of family law, including divorce and financial settlements, cohabitation, domestic abuse, nuptial agreements and cases involving children. He has also gained significant experience acting on behalf on behalf of military personnel. Kai also has experience advising on wills, trusts and lasting powers of attorney. Outside of the office, Kai enjoys watching and playing sports, with a particularly keen interest in rugby.

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  1. Andy says:

    Forget all the myths. If children reside at the once family home then no court will sell the property until either child or children have left or providing housing needs of there own.
    However, a court will impose a MESHER Order to be placed upon the property and when time span has been reached to either sell or pay the greed proportion of the value. Now the value may either rise or fall but if a figure has been agreed the figure agreed would be paid.. Not on value at the required time.
    If however the housing needs are not for the resident children then agreement to sort this out with the housing needs of the non resident parent.. But be warned, what you think is 50/50 split is never correct.. The law will make provision for the children as they come first..

  2. Dr Grumpy says:

    I had no choice! My ex said if I didn’t leave she would call the police and allege domestic violence!

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