Divorce | Who gets to keep the house?

Chris Brown, Head of Family Law at Hegarty Solicitors

When separating from your partner, wondering where you will live and what will happen to the family home is often a source of worry and stress. Deciding how assets and property are split in a divorce is determined by the financial needs and resources of the parties involved, so there is no ‘one-size-fits-all’ approach. Chris Brown, Head of Family Law at Hegarty Solicitors, answers common questions about the family home in a divorce settlement

What legal rights do you have to your home during a divorce?
During a divorce, if you are in a marriage or civil partnership and own your home, home rights allow you to:

  • Live in the home until a court order is made regarding property division in the divorce or dissolution of the civil partnership.
  • Seek a court order to have the other spouse or partner removed from the home if there is a risk of violence or threat of harm.
  • Request that the court sells the home and divides the proceeds between the parties.

Does moving out mean you give up rights to the home?
Moving out during a divorce does not necessarily mean giving up your rights to your home. However, it can sometimes have an impact on the outcome of the property division in the divorce, so it is important to consult with a lawyer to understand the potential implications of moving out during a divorce and to ensure that your rights and interests are protected.

Can a home sale be postponed?
It is not uncommon for the sale of a property to be postponed until after the divorce is finalised due to several factors, including disagreements over the value of the property or disputes over how the proceeds from the sale will be divided.

In some cases, parties might decide to sell after the youngest child reaches the age of 18. However, postponing the sale of a home can have financial implications, as the property may continue to accrue expenses, such as mortgage payments, property taxes, and maintenance costs. It is therefore helpful to have an agreement in place and seek advice.

Can you be forced to sell your home during a divorce?
Even if you do not agree to a sale, at the end of your case the court can order a sale of any property, including property you jointly own or own in your sole name. This is called an Order for Sale.

If an Order for Sale is granted, both spouses are legally obligated to comply with the court’s decision. If they do not comply, then a Judge can take an uncooperative party’s place and sign any paperwork to facilitate the sale. The proceeds from the sale will be divided between the spouses in accordance with any final Judgment.

What rights does joint ownership give you?
If you are joint owners of a home, you each have an equal right to occupy the property unless the court orders otherwise. This means that neither spouse can force the other to leave the property unless a court order is in place.

When it comes to dividing the proceeds from the sale of a shared property, the court will take into account a number of factors, including the financial circumstances of each spouse, the length of the marriage, and any other relevant factors.

What rights does sole ownership give you?
As the sole owner of a property, you have the right to occupy the property and decide what to do with it. However, your spouse also has a right to occupy the property and not to be excluded from it (these are known as Matrimonial Home Rights).

As part of Financial Order proceedings connected to a divorce, a court can order that a property is transferred from one party to their spouse, subject to any mortgage, or that the property is sold so that a lump sum can be paid to the other spouse.

Is the house still a matrimonial asset if your partner owns the house you live in?
If your home is owned by your husband or wife but was lived in as your matrimonial home, it is considered a matrimonial asset, even if you didn’t contribute to its initial purchase. The starting point with any matrimonial asset is an equal sharing, however this can depend on other factors such as the length of the marriage or your financial needs and resources.

Who is responsible for paying the mortgage while going through the process of divorce?
If you are both named on the mortgage, you are both responsible and liable for paying the mortgage. In the case where one person doesn’t pay their share, the other can be held responsible for the whole mortgage.

If only one of you is named on the mortgage, the person on the mortgage is solely responsible for the payments. However, if they don’t make the payments then the other spouse/civil partner can pay, if they are a joint legal owner or have home rights.

Being named on the mortgage doesn’t mean that you are the legal owner of the property, it only means that you are responsible for making the payments.

  • If you are facing a divorce and have questions about the division of assets, including the family home, it’s a good idea to seek the advice of a solicitor like Hegarty Solicitors. We can help you understand your rights and negotiate a divorce settlement that is in your best interests. Visit or call 01733 346 333.
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