Who Gets the House in a Divorce?

Couples who have jointly purchased a house together are both equally legally entitled to remain in the house. The financial agreement relating to the separation of assets normally determines what happens with the property – one party may retain occupancy or the house may be sold and proceeds split.

How Does the Court Decide?

If it comes to it that the court must decide what happens to your home, they will weigh up a number of different ‘financial remedies’. Some of the factors that they will consider include:

  • Whether there are any children under the age of 18 and who they will be living with
  • How long you have been married or in a civil partnership
  • The age of each person in the marriage or civil partnership
  • The value of the assets from before, during, and after the marriage or civil partnership – including pensions
  • Each person’s earning capacity and their role within the marriage or civil partnership – such as bringing up children
  • The standard of living during the marriage or civil partnership
  • Whether each party has a disability
  • The contribution of each party to the assets and finances during the marriage or civil partnership
  • Any negative conduct by each party
  • The overall needs of each member of the couple it is always the case that the needs of any children will be the priority in any decisions that are made by the court.

What are My Legal Rights?

‘Home rights’ relate to your legal right to having a family home – regardless of whether you own it or not, or your name is on the mortgage. It means that unless there is a specific reason such as domestic violence, nobody can be made to leave the property.

Common Questions

What if We Own the Property in Both Names?

If you and your spouse or civil partner own a property in both names, you are both legal owners, and as such, have the right to stay in your house and return to it if you move out on a temporary basis.

What if Ownership is in One Name?

Even if ownership is in one name, as the parties are married, both parties still have ‘home rights’. However, it is important to consult a family law solicitor on how to protect your interest in the property if the property is owned in your spouse’s sole name.

Who Stays in the House During a Divorce?

When a married couple separates, it is common for one of them to move out of the marital home. Whilst this is certainly not a legal necessity, it can make life a bit easier for everyone. It is important to be aware that if someone does move out, this does not affect their rights to the ownership or occupation of the property. Until the financial settlement is made, both parties have ‘home rights’.

Who is Responsible for the Mortgage?

The responsibility of paying the mortgage on a property depends on who has taken the mortgage out. The person who is on the mortgage agreement is not necessarily the legal owner, but they are the one who is responsible for paying the mortgage. If, for example, you are both named on the mortgage agreement, the responsibility is on both of you to pay it.

This does not mean, however, that you must pay exactly half each, and if the other person does not pay their share of the mortgage, you will be required to pay the outstanding amount. If, for example, one of you is on the mortgage agreement only, that person will have the responsibility of paying the mortgage. That does not mean, however, that the other person cannot make the payment – as long as it is made, it is not important who pays it.

What if the Property is Rented?

If you rent your home with your husband or wife, it is important to seek legal advice on understanding the tenancy agreement and how this relates to your legal position and responsibilities.

Can the House Be Sold Before Getting Divorced?

The marital home can be sold before getting divorced. However, if you are seeking to sell the marital home prior to the divorce being finalised, as there are advantages and disadvantages dependent on the situation, it is important to seek tailored legal advice from a family solicitor.

Can You Purchase a House Whilst Getting Divorced?

It is not advisable to purchase a property prior to the divorce being finalised as all assets are taken into account during the financial settlement of the divorce. Therefore, the financial value of any property purchased prior to this is at risk of being included in the division of marital assets.

Why Use Waldrons Solicitors?

Here at Waldrons Solicitors, we have a depth of experience in helping people through the intricacies of a divorce and separation. Our team of professionals is on hand to guide you through the process, ensuring that you get the best outcome for everyone.

More information on Family Law



Last reviewed on 11/07/23 by Alka Wood who is a Solicitor