What are my rights to the family home when divorcing my spouse?
Written by Chelsea McVicker | Family Team | 28 March 2024
The end of a marriage is a difficult time for all, even moreso when you own a home. Understandably, one of the main questions faced by Family lawyers is ‘Can I stay in my home once we have divorced?’ This is particularly the case if you have young children living with you.
It is really important to remember that there are different laws that apply to married and unmarried couples. This blog focuses only on the law in respect of married couples and therefore is not the correct information if you and your partner were cohabiting.
Within this blog, I want to address the main misconception that seems to be circulating. I have heard time and time again that people believe that in divorce, they have the right to remain in the home until their youngest child reaches 18. Put simply, there is no law that gives any spouse or parent this right.
It is important to remember that the Family Court does have that power to sell the family home. It can do so, even if there are children living there and you or your spouse does not wish this to happen. The Family Court, when dealing with finances, is trying to achieve financial fairness between you and, sometimes, it may be that a sale of the main asset is the only way to achieve this.
Having delivered this news, this is not to say that the Family Courts will always sell your home when you are dealing with financial matters. Overtime, practical ways of dealing with matters have evolved and from this, the provision for a delayed sale has been developed. This has created the idea of the home being kept until a certain condition triggers the sale in the future. Such triggers are often the remarriage of the person living in the home, the person who remains in the home cohabitating with another and the youngest child turning 18 or finishing Secondary School.
This type of order is often known as a ‘Mesher/Martin Order’ and provides a way for one party to stay in the home. When the Family Court makes orders about your financial affairs, it will not automatically make an order in respect of where the children should live, but it is often the case that the home is retained in order to provide a home for the children.
The idea of remaining in the home is attractive to most, particularly when you face so much uncertainty when separating. This is what some wish to achieve and the Court can allow for this on the making of Orders, if it feels this best achieves everyone’s financial needs.
However, if you do reach an agreement or obtain an Order that allows for you to remain in the home for the immediate future, it is important to be aware that this may not be the best long-term solution for you. The phrase ‘kicking the can down the road’ is sadly one that springs to mind.
The risks that you face with a delayed sale is that your circumstances on sale, financial and otherwise, are unknown when making the agreement. This means that when you have to sell the home in the future, you may not have enough money to buy another home or get a mortgage. This could see you forced into rented accommodation on sale.
Such orders also see you financially linked to your ex, until the home is sold. The Court tries to achieve a Clean Break between you as soon as possible to ensure that you are both financially independent. Having the tie of a jointly owned property does not achieve this and can cause you a headache in terms of day-to-day management of the home until sale.
When reading this, please remember that each case is fact-specific and there is no blanket rule that can be applied to all cases. This is because each person’s financial circumstances, needs and assets are different.
Our Family team can assist you and provide advice to you about your individual circumstances. If you would like to discuss the above, or want advice as to your situation if you are separating from a cohabitating relationship, please contact us by calling 01752 827030 or emailing family@nash.co.uk.
