There is no definitive answer to who gets the house in a divorce with children in England and Wales; rather a family court judge will consider several important factors such as income, age and health. However, you can be reassured that any judge making this decision will always prioritise the needs of your children and that they have a stable home environment. While the primary caregiver normally retains the right to stay in the marital home with the children in a divorce, this cannot be assumed. The courts will also look at factors including:
- The income, earning capacity, property and other financial resources that each party has now and is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities that each party has now and is likely to have in the foreseeable future
- The standard of living enjoyed by the family
- The age of each party to the marriage and the length of the marriage
- The physical or mental health issues of either party
- The contribution made by each party during the marriage and how much they are likely to make in the foreseeable future
- The conduct of each of the parties
In England and Wales, divorcing couples are encouraged to decide between themselves who will keep the marital home or how it will be split, and to have this drawn up in the form of a ‘divorce settlement’.
If you are unsure who has the right to stay in your marital home, if you are struggling to reach an agreement with your partner, or if you are concerned about where you and your children will live, we would encourage you to speak to our experienced family law solicitors. We will listen to the details of your case, your worries and concerns, and your preference for your living arrangements with your children and recommend the best course of action to ensure this is achieved.
Can I stay in the marital home with my child?
Yes, during the divorce process, you can stay in your marital home with your child or by yourself. This is because, under matrimonial home rights law in England and Wales, both spouses have the legal right to stay in the family home until a divorce financial settlement is reached. Such settlements set out how all marital assets will be divided following divorce, including the family home. However, if you have been affected by domestic abuse in the home, you can apply to the courts for an Occupation Order to prevent your ex-spouse from accessing the family home, ensuring your safety and that of your children.
Once your divorce has been finalised, your matrimonial home rights end. At this stage, the question of whether you can stay in your house will depend on either:
- What you have decided with your ex-spouse when negotiating your divorce settlement.
- What the judge orders must happen to the house if you cannot decide between yourselves.
How is a house divided in a divorce in the UK?
Depending on the outcome of your divorce financial settlement, a court in the UK may order:
- The marital home is to be sold, and the proceeds be divided between the divorcing parties.
- The marital home is to be transferred into one party’s name for their exclusive occupation.
- The sale of the marital home is to be delayed until a triggering event occurs in the future.
Depending on the decision reached by the judge overseeing the matter, they may issue a Property Adjustment Order such as a Mesher Order. Mesher Orders are typically issued when one party wishes to remain in the family home with their children and cannot get a mortgage in their own right. Mesher Orders normally state that the family home cannot be sold for a fixed time period or until a ‘triggering event’ occurs. A ‘triggering event’ in this sense may include when the child living in the house reaches the age of 18 or finishes their education, the resident spouse remarries or starts cohabiting with a new partner, or the death of the resident spouse. This type of order provides greater stability and security for the children from the marriage in the event of separation.
