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What happens to the house when a couple divorces marriage or a civil partnership?
A family home is one of the most valuable marital assets of a married couple or a civil partnership. All assets, if any, should be divided between you and your husband or wife.
This would include the marital home, even if only one individual contributed to its purchase or already owned it before marriage or civil partnership. The division of assets is usually based on each person’s financial needs and responsibilities, like children.
It can be frustrating for divorcing couples to find out; that there is no simple and clear-cut answer; there is no such thing as a ‘standard split’ of assets, such as the family home.
There is no standard or one-size-fits-all legal formula to apply to different types of divorcing couples. So much depends on the circumstances of the marriage or civil partnership and not always on the legal ownership of the home or who pays the mortgage.
It is advisable and better for both husband & wife to agree (a written agreement) about how assets should be divided. This is where mediation, arbitration and collaborative law may help you decide.
However, if you cannot mutually agree, then either of you can apply to the court so it can decide for you.
This means both parties will incur lawyers’ costs, which can cost thousands of pounds.
You can read more about how the courts use the law to decide on a reasonable division of assets and the process stages.
Also, remember it is not just what each spouse may get when you separate. Therefore, any Joint debt also has to be considered and shared one way or another.
If in doubt, contact your family law solicitor. If you do not have one, find a family lawyer nearest to you who may be able to offer some free legal advice.
What happens to the house when you split or divorce?
1. The Wife gets half of everything.
2. The Husband gets half of everything. (This is called “community property”)
3. If children are involved, they get to split 50-50 too.
4. If one spouse has been married before and has kids from that marriage, those kids also get half of everything.
5. If both spouses were previously married, then they get half of what was in their previous wives’ names.
6. If the husband had an affair with someone else while he was married, then all of his assets go to his wife.
7. If the wife has an affair with someone else during her marriage, then all of her assets go to her husband.
8. If the wife leaves her husband, she loses all her assets.
Who gets to stay in the house during a divorce or separation?
It doesn’t matter if you rent or own your home or if it’s in just one or both of your names; you could still have the right to live or stay there.
So, if you bought your home together in the UK, you are equally and legally entitled to stay there.
During a divorce/separation, your financial agreement will decide whether the person staying in the home should buy the other’s share and whether your house will be sold.
The proceeds split, or the person who primarily cares for the children should stay until the children leave home.
If you’re not sure whether you should leave your marital home or if you can ask your partner to go, always seek legal advice before taking any action.
Do not just leave your home because your partner tells you that you should.
How does the court decide who to give the house to in a divorce?
In the UK, when a court imposes ‘financial remedies’ to split the assets, it will make the decision based upon:
- Any children under 18 in the marriage/civil partnership, their needs, and whom they live with
- The age of each spouse/civil partner
- The length of the marriage/civil partnership
- The value of assets, both before, during and after the marriage/civil partnership, can also include pensions.
- The earning capacity of each spouse/civil partner and their responsibilities during the marriage/civil partnership (such as child-rearing) and in the future
- What each spouse/civil partner contributed to the marriage/civil partnership in terms of finances and assets (and may contribute in the future towards the family’s welfare)
- The standard of living during the marriage/civil partnership
- If either party has a disability
- The hostile conduct of the parties (although this is rare)
- The overall needs of each party
The court will always endeavour to meet the needs of any children first and then the partners’ needs. For more information, see our pages on financial settlements and financial remedies.
When it has made its decision, the court may issue a property adjustment order as part of the financial settlement. Common orders are:
- Transferring the property from one partner to the other (this could also involve one buying out the other)
- Postponing the home’s sale to a specific date or event, such as when the youngest child turns 18 (this is sometimes called a Mesher or Martin order)
- Selling the house and dividing the proceeds (usually if there are no children, and if neither partner can afford to stay in the home, or both can afford another home)
In the interim, pending a court order deciding a permanent arrangement, some short-term legal rights to the family home can be registered and enforced by either or both spouses/civil partners. These are called home rights, which we explain in more detail below.
What legal rights do I have to my home during a divorce or separation?
One spouse/civil partner usually moves out of the family home during separation and divorce/separation to reduce sources of tension and conflict.
However, this does not mean that the non-resident spouse/partner automatically forfeits any rights to the ownership and occupation of the house.
In the UK, spouses/partners have legal ‘home rights’ until a financial settlement is made or until the court imposes financial remedies as a permanent arrangement.
Home rights refer to your rights to the family home, even if you don’t legally own it or it is not a joint mortgage. This means that neither spouse/partner can be forced to leave the marital home unless there is domestic violence or court order.
Home rights are helpful in the short term before the courts finalise anything, but they cannot determine long-term decisions such as who gets to own or live in the property permanently or whether the property will be sold.
There are different types of home rights according to how the property is owned and by whom.
Divorce proceedings decide who keeps the house, even if it is a joint mortgage. Mortgage repayments must be kept up to date, especially if children are involved until a financial settlement is made.
What are Matrimonial Home Rights In Divorce?
If you are in a marriage or civil partnership, own your home (either outright or mortgaged) and live in the UK, home rights give you the right to:
- Stay in your home unless a court order expressly excludes you from being there.
- Ask the court to allow you to return to the home if you move out.
- Register your home rights with the Land Registry as a ‘charge’ on the property, so it cannot be sold, transferred, or have a mortgage taken out on it without your knowledge.
- Pay the mortgage (if the person named on the mortgage stops making the payments)
- Know of any repossession action taken by your mortgage lender (providing you have registered your home rights with the Land Registry)
- Apply to be joined in any mortgage possession proceedings being taken by the lender
These rights come from the Family Law Act 1996 (UK) and apply to married couples and civil partners who live in the family home together.
Home rights are short-term: they apply only until the divorce/separation, or dissolution of civil partnership, has been finalised and the financial settlement agreed by the courts (which may be before or after the divorce itself).
What are my home rights if the house is owned by my spouse/civil partner solely in their name?
Home rights permit you and your partner to continue occupying your marital home regardless of who bought it.
So, even if the house is in your husband or wife’s name, you have a right to continue living there. However, it’s important to note that this right is only valid when a property is used by spouses/civil partners.
This right doesn’t extend to properties that haven’t been used as a matrimonial home.
You have home rights if your spouse/civil partner legally owns the property solely in their name (as on the title register or the title deeds at the Land Registry), but it is/was lived in by you and your spouse/civil partner as the family home.
If this is the case, you must register your home rights with the Land Registry. This registers your rights as a charge on the property, meaning it can’t be sold, transferred, or mortgaged without your knowledge.
There are two steps to registering your home rights:
- Firstly, find out if the home is registered with the Land Registry (if so, find its title number and in whose name it is registered). You can do this by searching the register.
- a) If the home is registered, you can apply to register your home rights here.
b) If the home is unregistered, you can apply to register your home rights here.
These rights apply only until the court finalises the financial settlement or financial remedies, at which point a permanent arrangement will take effect.
A matrimonial home rights notice also ends on the pronouncement of the final order, so a settlement must be reached and implemented before the final order is pronounced.
You can set an end date for the agreement when you first make it, or you can choose to end the separation agreement voluntarily if you both agree.
If you agree with this, the safest option is to either have the separation agreement rewritten to explain the date of cancellation or to have a new document confirming the end of the agreement.
If one of you wants to end the separation agreement and the other disagrees, you may have to go to court to challenge or defend it.
What happens to a separation agreement when your divorce is finalised?
It depends on whether you’ve used your separation agreement as a temporary measure until you apply to the courts for your divorce or as the basis of a final agreement to be legally binding later.
You don’t have to get court orders about your children and finances unless you can’t agree on them. If your separation agreement works fine and you agree, you don’t have to turn it into a legally binding consent order.
However, it can complicate matters further down the line if you haven’t cemented your arrangements in this way – for example, if one of you dies before your divorce is finalised, or your will conflicts with the separation agreement.
The courts decide financial matters and child arrangements separately from your divorce process. However, they are not the same processes and do not come as a package of measures.
For example, a single ‘child arrangements order’ deals with children’s issues and may require additional orders such as ‘prohibited steps orders’ or ‘specific steps orders’.
A ‘financial order decides financial arrangements. These can be decided before, during or after your conditional order has been granted.
Registering with the Land Registry is also helpful if your spouse/civil partner tries to sell the property without your knowledge. A well-detailed document will be added to the property’s title deed, notifying potential buyers of your right to occupy the property.
More often than not, doing so will deter buyers from considering your property for purchase. While this notice doesn’t accord a non-owning /civil partner any new rights, it helps to give you peace of mind by knowing you can’t be evicted from your own home.
Do I have home rights if the house is in my sole name (I am the sole legal owner of the property)?
No, but you don’t need them, as your right to the property comes from your legal ownership of it (i.e., you are named on the register of title or title deeds).
Your spouse/civil partner, who doesn’t legally own the home, has home rights until the financial settlement is finalised/final order obtained and a permanent solution agreed.
What are my rights if we own the property as joint legal owners?
If you’re both registered as legal owners (on the register of title or title deeds), then your rights to remain in the home come from that legal ownership rather than home rights.
Home rights don’t apply in the case of joint legal ownership – but your rights as joint legal owners are similar: you both have the right to stay in the house and return to it if you temporarily move out.
Home rights apply temporarily until a permanent settlement is reached. However, suppose your house is in joint names, and you can’t agree on a permanent settlement between yourselves on what to do with it after your divorce.
In that case, the court can make several property adjustment orders as part of its financial remedies. For example, you can find out more about selling jointly owned property here.
Who gets the house in a divorce with children?
If you’re getting divorced/dissolving your civil partnership and you have children, your primary concern is their welfare and keeping them in your family home to minimise upheaval.
However, just because you have primary care for your children doesn’t automatically mean you are entitled to stay in your house.
Suppose you can’t agree on who gets the house and have to ask a court to impose financial remedies.
In that case, the court will prioritise your children’s needs and welfare regarding their living arrangements, especially if they are under 18 (subject to the financial resources available to the parties).
The court’s desire to minimise trauma and upheaval to children may sometimes involve the order that they stay with the resident parent in the family home.
This may be as part of an offsetting agreement, where one spouse//civil partner gets the house but no spousal maintenance or forfeits rights to the other’s pension. However, every case is unique in its complications and will always require detailed legal advice.
Do I lose the house if I move out?
Not necessarily. You still have short-term home rights even if you move out, which means you can still return to the home until a permanent arrangement is agreed upon and formalised by the court.
If you move out and can’t agree on a permanent solution regarding the house after your divorce/dissolve your civil partnership, the courts can decide for you through financial remedies. The court is not biased against the spouse/civil partner who moved out and will decide based on several factors.
Can I keep the house if I am interested in my spouse’s/civil partner’s pension?
There are several ways assets can be split and offset against each other, including the house and either spouse’s/civil partner’s pension.
For more information on dividing pensions and how retaining an interest in your spouse’s/civil partner’s pension could be offset against keeping the house, see our section on pensions on our financial settlement page.
Who is responsible for the mortgage when we are divorcing?
It depends on who is named on the mortgage.
- If you are both named on the mortgage
This is called joint and several liabilities. You are both responsible and liable for paying the mortgage. That doesn’t mean you are both liable for half each though – if one person doesn’t pay their share, the other can still be held responsible for the whole mortgage.
So, it doesn’t matter if one or both of you pay the mortgage – just that the payments are made.
- If only one of you is named on the mortgage
That person is solely responsible for the mortgage payments. However, if they don’t make the payments (for example, if they move out), the other spouse/civil partner can pay if they are a joint legal owner or have home rights.
The mortgage lender has to accept these payments as if they were from the person named on the mortgage.
Being named on the mortgage doesn’t mean that you are the legal owner of the property (especially if the property is in the sole name of one spouse/civil partner), only that you are responsible for making the payments.
Am I entitled to half the house in a divorce?
When granting a divorce, the way the court splits your assets includes all assets that belong to both you and your husband or wife, not just those that are owned jointly.
How these assets are split depends on the agreement you and your spouse/civil partner come to or what the court decides is fair if you cannot choose between you.
The family home is a unique asset to the family courts and is given special treatment to ensure that both parties will be left with a roof over their heads once the divorce is finalised.
Even if one of you has sole ownership of your home, the courts often hold this with little relevance and other factors are considered alongside this.
In the final settlement, there are various decisions to be made around the division of your family home:
- The home is transferred from one spouse/civil partner to the other home should be sold, and the proceeds divided into specified percentages home should be kept in joint names. Still, only one person (the primary carer of the children) will remain. The property is sold at a later event, such as death, remarriage/new civil partnership, or the youngest child finishing education.
Is the house half mine if my husband/wife/civil partner bought it before marriage?
In the UK, this is usually decided case-by-case, but generally, if your husband or wife owns your home. But it was your marital home; it is generally considered a matrimonial asset. Even if you didn’t contribute to its initial purchase, it might not be divided equally. Still, you may be entitled to at least a small portion of its value.
However, if the property has never been used as a marital home, you have no right to claim ownership or proceeds from its sale.
If you can illustrate to the court that you’re financially worse off without the proceeds from the property, then your claim to it may be reconsidered.
Can my wife/husband/civil partner take my house in a divorce?
Whether or not you contributed equally to the purchase of your house or not, or one or both of your names are on the deeds. You are entitled to stay in your home until you agree between yourselves or the court comes to a decision.
Remember that even if you paid the entire mortgage on your own, your husband or wife might still be entitled to a portion of its value.
One of the things that will be considered is the duration of your marriage/civil partnership. In a short marriage/civil partnership (anything less than five years), you’re more likely to retain the assets you’ve brought to the union.
However, in a long marriage/civil partnership, any marital assets will be divided fairly by considering other aspects.
What happens to the house if we are separating but not divorcing?
If you don’t want to divorce/dissolve yet, a separation agreement may work best for you. This is where you agree on the arrangements for your children and any assets (such as your house) in case your relationship breaks down and how you will maintain this agreement after your separation.
You will need legal advice on what a separation agreement needs.
Please find out more about separation agreements, how legally binding they are, and how to maintain or vary your separation agreement here.
What happens to a rented property during a divorce?
If you’ve lived in a rented house during your marriage/civil partnership, then you’re not the legal owner and cannot use it as an asset to split upon divorce.
However, deciding who keeps the tenancy and stays in the property can still be challenging.
- Which spouse/civil partner has to leave the rented house, and who stays?
Whether the tenancy is in the sole name of only one spouse/civil partner or whether you are joint tenants, you both have home rights until the tenancy ends or the marriage/civil partnership legally ends.
This means that in the short term, both of you have a right to live there, neither can force the other to leave, and both of you can return if you temporarily leave home.
- Who pays the rent?
You must ensure either or both of you pay the rent between you. However, not paying the rent could result in your landlord’s eviction and contribute to your poor credit rating.
- If you agree on who keeps the tenancy
If you agree that one of you is to keep the tenancy in the rented home, you could assign the tenancy (transfer it to one of you) if both your tenancy agreement and landlord allow it.
You could also ask your landlord to end the tenancy and create a new one in the name of the spouse/civil partner who will continue living there.
- If you can’t agree on who keeps the tenancy
If you can’t agree with what to do about the tenancy, you may have to get the courts to impose a resolution. You can find out more about this on the Citizens Advice Bureau here.
Can a spouse/civil partner stay in a house even if they are not on the deed?
If your house is solely in your name, but your spouse/civil partner has been living there as part of your marital home, they may still be entitled to stay, whether or not you object as the owner.
If you are married and your spouse/civil partner is not named as the homeowner, they have the right to stay and occupy the home under home rights registered with the Land Registry.
This is designed to protect their interests in the home until your divorce/separation is finalised, by which time, the way the property is dealt with will have been decided.
Will I have to sell my house if I divorce or separate?
Whether or not you have to sell your house as part of your divorce/separation is decided on a case-by-case basis. Some couples can agree on whether one person should buy or stay in the house, while others have the court decide for them.
There are several agreements you can come to regarding your home during your divorce/separation.
The positive aspect is that if you choose a buy-out, you don’t necessarily have to pay your spouse/civil partner half the value of your home. Instead, you can agree on other aspects of your joint finances, such as savings and investments.
If you and your spouse/civil partner opt for this, both parties must get written proof of this contract.
Stay in the home
When deciding who will get the home, the court takes several factors into account, such as:
- The welfare of children, specifically who is best suited to caring for them day-to-day income, earning capacity and additional financial resources that each spouse/civil partner has or is likely to have shortly financial liabilities, obligations and duties that each of the partners has or is expected to have in the future the standard of living that the spouses/civil partners had before the breakdown of the marriage/civil partnership age of each partner and the duration of the marriage/civil partnership contributions that each spouse/civil partner made or is likely to make in the future for the sake of their family’s welfare value and benefit of the property to each of the parties, which would end due to the separation of annulment of the marriage/civil partnership.
Postpone the sale
If the circumstances don’t allow for the immediate sale of a home, you and your partner may agree to postpone the property’s sale. This is particularly beneficial when kids are involved. Retaining the family home can help the children achieve stability despite their parents separating.
Usually, the parties agree to postpone the property’s sale until the youngest child reaches the age of 18. After this, the home can be sold, and the proceeds divided.
Can I sell my house before divorce/separation?
Yes, you can sell your house before starting or finalising divorce/separation of civil partnership proceedings. It can make divorce/separation proceedings much easier and more amicable for you and your spouse/civil partner.
If you’re still on good terms with your spouse/civil partner, selling your house before divorce/separation will give you a chance to agree on how your finances will be split between you, so you don’t have to worry about haggling with your spouse/civil partner later down the line.
Divorce/separation of a civil partnership can be expensive, so selling your home beforehand can help to relieve some of the financial burdens and help you to get on your feet after the split.
However, it is also important to remember that property markets can be unpredictable. This may result in your property taking longer to sell, which can cause issues if you want to start divorce/separation proceedings quickly.
Waiting until your divorce/separation could give you more time to decide how you want to proceed and make sure you don’t lose out on any money by selling too quickly or settling on a lower price.
However, if you’re not on good terms with your ex-partner, this can turn into a long, drawn-out process and if one partner continues living in your home, there is little incentive to sell quickly.
Can I force the sale of a house during divorce/separation?
The answer to this question depends on your circumstances, and many factors are taken into consideration, such as the length of your marriage/civil partnership, the financial needs of both parties, whether there are children involved, equity in your property and whether your joint owners of the property.
If you wish to sell the family home and doing so would be in the interest of both parties, you can force the sale of your house.
To do this, you will need to apply for a court order to permit the sale of the home and provide a timeframe during which it should be sold. It’s important to know that these exist for both parties.
Many factors are considered before the court enforces an order of sale. These include:
- The involvement of children, whether the mortgage has been paid, the intentions of both parties, whether you can both afford to buy new homes
Can you buy a house while getting divorced/dissolving a civil partnership?
The time after you separate from your spouse/civil partner and before you receive a final court order is still classed as ‘during the marriage/civil partnership’ by the courts.
During divorce/separation proceedings, the court considers anything owned by either party, regardless of whose name it is in.
So, if you buy a house before you are officially divorced/your civil partnership is dissolved, the value of the house would be considered when dividing your assets as part of your divorce/separation proceedings.
This means that your spouse/civil partner could make a claim against the value of that house or receive more of your jointly owned assets to take account of the value of your new house.
Therefore, it is strongly advisable not to buy another property until your divorce/ separation is finalised so that your spouse/civil partner cannot claim any rights to the value of your new home.
Can a divorced couple who has dissolved their civil partnership live in the same house?
If your marriage/civil partnership is completely dissolved and you are legally considered a single person, you and your ex-spouse/civil partner can continue living together.
For many couples, this decision is based on finances and the children involved in the relationship, as it’s one way to continue co-parenting children and causing as little upheaval as possible.
Unfortunately, due to the financial burden of moving, many divorced couples and those who have dissolved their civil partnership continue living together as they transition into being officially apart.
However, if you are separated but not yet divorced/civil partnership dissolved, continuing to live together can be a costly and time-consuming move.
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