Frequently Asked Questions

What happens to the home in divorce or separation? What right do I have to stay there?

There are no set rules when it comes to decisions about homes and ownership.

You can make whatever arrangement you like with your partner, but it’s wise to bear in mind the legal position and what a court might decide. And the situation varies depending on whether you are married, in a civil partnership or cohabiting

There are very few circumstances where your partner can make you leave your home and both partners have the right to remain in the family home, but courts will give priority to making sure children have a secure home.

If you have day-to-day care of the children, the courts can, for example, order the transfer of a joint lease to your sole name if you rent, or, if you’re a homeowner, state that you can stay in your present home until the kids reach the age of 18

Although your home will probably be the biggest financial concern, decisions about housing will be made in the context of the whole divorce settlement. So, for example, child maintenance payments may include mortgage payments.

Will I need to go to court to stay in my house?

In some circumstances you may need to go to court to protect your rights if you fear losing your home now that you have separated and if you can’t reach an agreement with your ex about housing.

There is no set way of dividing your assets now that you have separated and your housing is likely to be one of the largest assets so it is important that you look at the whole picture before deciding on a single decision about housing. The best way to look at your situation in its entirety is to go to mediation. The mediator will help you draw together all the information you both need to make an informed decision about what to do with your possessions, assets and liabilities and how to divide them. Family mediators will be able to help you reach agreement that will ensure that any agreement you reach is equitable and fair; satisfy the legal requirements for divorce or separation; provide for your individual needs now you are separated; and above all ensure that the children’s needs can be met.

It can be daunting and feel counter intuitive to think sitting in a room with your ex sorting out your once shared life will be possible, but mediation works. The mediators are highly trained and skilled at helping you navigate through the decisions you will need to make even if you are no longer on the best of terms
The benefits of mediation are that you will be able to discuss everything that is of concern to you from the smallest detail such as who gets the silver teaspoons to the biggest things like the house, pension, boat, bike, car etc. It means you will be able to tailor your agreements and decisions to meet your unique needs and those of your family whereas going to court often results in decisions being made that don’t really suit anyone’s needs.

Remember also that legal aid is still available for family mediation. You will have to find a mediator who has a legal aid contact and be means tested for eligibility. If you are eligible then mediation is free of charge.

In the unlikely event mediation does not help you come to an agreement, you may need to go to court. The court might order that:

• Ownership stays the same, but one of you is given the right to stay in the property until a fixed point (for example, when your youngest child reaches 18)
• Ownership of the home is transferred to one of you, with perhaps a lesser share of other possessions
• The home is transferred to one of you but with a charge secured on the property, so that the other party receives a set percentage when the home is sold
• The home is sold and the proceeds split between you, in whatever proportions seem fair, for you both to start afresh
• Ownership is transferred to your child.

Selling the family home is often seen as the easiest option if you’re splitting up.

But there can be problems: for example, you might have trouble finding a buyer, or be caught in negative equity (when the value of your home is less than the amount you owe on the mortgage). This could make it impossible to sell and split the proceeds.

You might also struggle to get a mortgage on a new property, especially if you have only a small deposit or if your income is low.

You may need to consider other options, such as one of you staying in the property while the other rents, or living together in the family home in the short-term.

Before you make a decision:

• Budget carefully before committing to a housing arrangement. No matter how tempting it may be to stay in your family home, make sure you can afford to continue living there
• Check out mortgage options, what’s available and what you can afford. Some building society and banks offer Fresh Start mortgages for people starting anew
• Find out if you’re eligible for state benefits to help with your housing costs
• Accept that your lifestyle will change, at least for now, and be prepared to compromise.