Can I stay in our family home if we split up?

Divorce|September 3rd 2018

Separation and divorce: what happens to the family home?

The family home is a special place for all families and, in many cases, is the main family asset so it is little wonder that when a family breaks down, the property will be central to the divorce.

Sarah Barr- Young, Managing Partner of Stowe Family Law in Ilkley explains what options are available for separating couples and the family home.

What are the options for the family home in a divorce settlement?

In a divorce, all assets held jointly and in sole names need to be identified and their values agreed in order for the negotiations to commence to bring the parties financial relationship to an end.  During this process, a value for the family home will be agreed for negotiation purposes.

There are several options for the home. For instance: one spouse buys the other one out and keeps the house, the house is sold and the proceeds divided, or one parent remains in the property and the other party may defer receiving the balance for their share. This can be until the property is sold or transferred to another party upon a specific future event, such as once the children move out or the partner remarries.

It is usually clear early on whether one party can afford to retain the family home post-divorce or if it needs to be sold. Retaining the family home is important when children are involved to give them stability as they adjust to the new dynamic, but this is not always financially possible.

What if I cannot afford to run the family home by myself?

If you are unable to meet all the outgoings on your income, you could seek assistance from your spouse as an interim measure if they have the money available to help and your own outgoings are reasonable. You will need to check that your income includes everything that you are entitled to e.g. child maintenance/tax credits etc. If your spouse is unwilling to agree, it is worth contacting the mortgage provider to see if they can offer any assistance by way of a mortgage holiday as a short-term solution.

My name is not on the property deeds – do I still have any rights?

If the property is the family home then the court views it as a joint asset. However, if the family home is in the sole name of your spouse you must act quickly and enter a Notice of Home Rights against the property with the Land Registry. This should help prevent your spouse from trying to sell the property without your knowledge or consent.

Are my rights affected if I move out before the house is sold?

No. If the atmosphere at home has become unbearable and you need to move out it will not affect your entitlement to a claim on the property. It is advisable to collect all your personal belongings, including paperwork, before you go in order to prevent any issues in recovering them at a later date.

Do you need divorce advice?

There are many myths surrounding divorce and what happens to the assets of a marriage so I always recommend obtaining legal advice from a solicitor so that you can get advice tailored to your own situation. This will enable you to make informed decisions about you and your family’s future.

Author: Sarah Barr-Young

Sarah advises in all aspects of family law and has experience of divorce cases involving substantial income and capital as well as businesses and trust structures. She also advises on children matters, cohabitation and nuptial agreements.

Comments(5)

  1. Dr Grumpy says:

    And what do you do if your wife says “If you don’t leave I’m calling the police and I will tell them that you’ve been violent to me”?
    That’s what happened to me

  2. Bu says:

    The law in England & Wales makes the welfare of any children involved in the divorce a priority. This means the provision of a secure home comes first, as does ensuring continuity in their lives as much as is reasonably possible. For this reason, the person who is responsible for the day-to-day care of the children will often be entitled to remain in the family home.
    However, this does not mean the other person is exempt from paying the mortgage or automatically written off the Title Deeds.
    As for sharing the property, not the bed, this is also possible but it depends on both parties. However, when the separation/divorce is not amicable then usually the mother forces the father out using DV as a quick and easy solution.

  3. Paul says:

    I’ve spoken to a mortgage advisor and he told me that my wife income will not be enough to pay the mortgage. And he also said that i won’t be able to be on the mortgage unless i live in the property,but your saying different? As my income will only cover my outgoings, if i buy her out or move out then how can i help contribute to her mortgage. We have a 3yo child.

  4. Andrew says:

    If the NRP has CM and his own rent to pay it is usually futile to say that he must also pay the mortgage – he can’t. That is the reality for most separating couples with children, and the home has to go. The mortgagee won’t wait indefinitely and should not be expected to.

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