Who Gets the House in a Divorce/Dissolution?
(Last Updated: 24/08/2022)
24/08/2022
219
5 min read
Does the mother get the house in a divorce or dissolution?
This is a common misconception. There is no standard division of assets in a divorce or dissolution of a civil partnership. The split will depend on lots of factors including wealth, income and pensions as well as the wellbeing of any children, regardless of the gender of their caregivers.
What happens to the house if you divorce or dissolve a civil partnership?
Until the financial remedies or financial settlement is made, both parties still have 'home rights' - the right to live in the home, even if just one of them is named on the legal title.
You can apply to the court for an 'occupation order' to exclude your ex whilst the settlement is agreed. However, this is only granted in extreme circumstances. You may also apply to the court to regain access to your home if your ex-partner won't let you in.
One party can live away from the home temporarily to minimise conflict. This does not mean that they forfeit their rights to the property.
The best resolution is always to decide your financial settlement amongst yourselves. You should still do this with the help of solicitors who can negotiate and advise you on what is fair. If you are able to reach a settlement this way, you will save time, money and heartache on fighting in the courts.
What are home rights?
Under the Family Law Act 1996 (UK), if you are married or civil partners and one or both of you own your home property, then you have 'home rights'. These apply until your divorce/dissolution can be finalised and a financial settlement agreed.
These give you the right to:
- Continue living in your home (unless a court order excludes you)
- Apply to the court for an order allowing you to return
- Register your rights as a 'charge' with HM Land Registry (So it cannot be sold, transferred, mortgaged, or repossessed without your knowledge)
- Pay the mortgage if your partner fails to pay
- Apply to be joined in any mortgage repossession proceedings, if the Lender begins them.
How much of the house am I entitled to in a divorce/dissolution?
If you cannot agree on how to split the home and assets, then a court will order a financial remedy or settlement on a case-by-case basis. There is no fixed rule for determining who gets what. The factors which will affect the court's decision are:
- Firstly, the needs of any children under 18 and who they will live with, then;
- The value of pre-marital, marital and post-marital assets;
- The income and earning capacity of both parties, including pensions;
- The financial responsibilities of both parties, now and in the future (i.e. child rearing);
- What finances and assets each party contributed towards the marriage or civil partnership;
- What finances and assets each party may contribute, in the future, toward the family's welfare;
- The standard of living enjoyed during the marriage or civil partnership;
- The duration of the marriage or civil partnership;
- The age of each party;
- If either party has a disability;
- The overall needs of each party.
The court may also consider any negative conduct by either party when making their decision. However, this is fairly rare.
What is a Property Adjustment Order?
Within the financial remedies decided by the court, there will often be a property adjustment order. This settles the big question: Who gets the house in divorce/dissolution? There are three common orders:
- 1
Transferring the property into one partner's sole ownership. This may be done through a buyout.
- 2
Postponing the property's sale until a specific date, most commonly the youngest child's 18th birthday.
- 3
Selling the house. The proceeds will be split according to each party's shares as determined in the financial settlement by the court. This usually happens if neither party can afford to buy the other out, or if both parties can afford to buy separate properties.
Frequently Asked Questions
This is an old fashioned belief and not strictly true. What happens to the house will depend on many factors, as explained above.
The person most likely to get the house in a divorce is the primary caregiver of the children, regardless of their gender. The courts will place the needs of the children above the divorcees/dissolving partners, so if it is possible for them to remain in their home with their primary caregiver this is likely to be the chosen option.
However, the court may still order the sale of the property upon the youngest child's 18th birthday, for the proceeds to be shared equally or unequally between the divorcees/dissolving partners.
It may not be possible to avoid losing the house, but there are a few things you can do to try and prevent this from happening.
- 1
Register your home rights at the Land Registry
If you are not a named legal owner, you should register your home rights as early as possible. Search the register. Then, apply to register your home rights on registered property, or on unregistered property.
This will mean that you will be notified of any attempt to sell, transfer, mortgage or repossess the property. If your ex partner tries to do this before you reach a financial settlement, contact your solicitor.
- 2
Try and settle out of court
If you can reach a settlement:
- a) between yourselves,
- b) with mediation, or
- c) with solicitors,
You will save money. Unfortunately the accumulated costs of a drawn out court battle can deplete both parties' funds to the point where neither can afford to buy the other out, and the house must be sold.
- 3
Conduct yourself appropriately
It should go without saying, but, avoid any negative conduct. It's rare, but it can sway the courts decision.
- 4
Get a prenuptial or Postnuptial agreement
If you are already beginning your divorce or dissolution, it may be too late for this. But, if you are simply reading this in order to prepare for any eventuality, you should seriously consider getting a prenuptial agreement, or postnuptial agreement, to protect assets you want to keep to yourself in the event of a divorce or dissolution.
Written by:
Caragh Bailey
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
Reviewed by:
Andrew Boast
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
