A question that clients often ask our family team when going through divorce proceedings is:
‘Can I stay in my home after divorce?’
Understandably, this is a topic of huge concern for many people as the family home is not just a physical space but often also filled with memories of children growing up, a place of safety and security, and where routines were built. This means that lots of us will want the opportunity to stay in our homes even after going through a divorce, and that the idea of leaving this space can be emotionally overwhelming.
In this guide, we will explain your options when it comes to staying in your home after a divorce.
Introduction
If you and your ex-partner jointly bought the home together, you have equal entitlement to remain living there. The best option is to try and reach an agreement regarding the house outside of the court setting. This keeps things less expensive, faster, and gives you and your ex-partner better control over the outcome. If yours and your ex-partner’s lawyers can work together to find a solution that works for everyone, it is much more likely to be an amicable and constructive solution for everyone involved.
The three main options
- Sell the home
If you decided to sell the home, the proceeds from the sale would be divided between you and your ex-partner. The proceeds from the sale would not necessarily be an even split and may depend on considerations such as other assets available.
- Buy out your partner
Whilst not always a financially feasible option, another option is for you or your ex-partner to buy the other out, that is to buy the other’s share of the property and continue living there. You will usually need to be able to demonstrate that you can afford to take over the mortgage and running costs on your own. This option will require a legal transfer of the property’s ownership.
- Delay the sale / transfer of the home or continue to live together
If the first two options are not suitable for you and your ex-partner, or if the relationship breakdown was amicable, it might be that the best option is to continue with the current ownership.
You may continue to cohabit or come to an arrangement where one of you lives there for a defined period. This is a common choice when there are children under 18 years old involved in the family and is also known as a Mesher order – an agreement where a specific event will trigger the house’s sale. The triggering event could be your children finishing their education or their reaching the age of 18.
In addition to the above options, it may also be possible to offset your ex-partner’s interest in your family home against another asset, such as a pension fund. To learn more about pension offsetting, you can read our blog here.
What if there are children involved?
If you and your ex-partner cannot decide what will happen to the house, the court can be asked to make the decision through imposing financial remedies, and they will look at a number of factors in determining what happens. When there are children involved, the court’s first priority will be to meet their needs, with the needs of you and your ex-partner coming second. This may include allowing the parent who is the primary care giver to stay in the family home, at least until the children reach 18.
If there are children under the age of 18 involved in the divorce, the court will look at factors such as:
- The arrangements in place for the children.
- The earning capacity of both you and your ex-partner.
- The age and health of you and your ex-partner.
- The marriage’s length and contributions of you both during it.
- The education of the children.
- The standard of living during the marriage.
- The assets and resources available to you and your ex-partner.
- If either of you have a disability.
- Any negative conduct of you or your ex-partner.
What if the home is just in my ex-partner’s name?
The fact that only your ex-partner is named on the mortgage deeds does not necessarily mean that they will get to keep the property in the divorce. Under the Family Law Act 1996, if you are married, you will have Home Rights which might mean you can:
- Stay in the home even if it is not in your name.
- Ask the court to grant an Occupation Order so you can remain there temporarily.
- Protect your interest by registering your Home Rights with the HM Land Registry.
Even if the property is in your ex-partner’s name, the court may decide that you should be entitled to carry on living there – this is especially the case if there are children under 18 years of age living there at the time of divorce.
If you do not own the house, it is recommended that you register your interest in it with the Land Registry. You can do this by registering a matrimonial home rights notice, otherwise known as a Home Rights Notice, which is a protective measure for a wife or husband without ownership of a house but with the right to live there. There is currently no cost to register a Home Rights Notice.
This notice provides a safeguard to ensure your interests are respected during any property transaction, despite your not owning the property. It also means that anyone conducting a Land Registry search on your home will be informed that there is a person living there with matrimonial home rights against the property. In practice, this would mean that if your ex-partner tried to sell or remortgage your home, the transaction would be unable to proceed without addressing you first.
Whilst you do not need to gain the consent of your ex-partner to make this application, they will be informed by the HM Land Registry in writing of your application.
How AFG Law can help
If you are in the process of getting divorced and want the answer to ‘can I stay in my home after divorce’, you can reach out to the compassionate and understanding family team at AFG.
If you have any further questions regarding divorce or if you require legal advice on any of the information listed above, please call 01204 377600 to speak with AFG Law’s expert family team who can support you in all aspects of family law. Alternatively, you can email one of the team members at familysolicitor@afglaw.co.uk.
AFG Law have multiple offices with family solicitors in Manchester, including Stockport, Bolton and Bury. We can also assist clients remotely.