Forget the Cash and the Dog: Who Gets the House in a Divorce?

When a marriage breaks down ,all of the shared assets will need to be divided. This may be easier when it comes to money, but deciding who gets the house in a divorce can prove to be a much trickier endeavour.

Although the divorce rate is a lot lower than in previous years, there are still a lot of couples who decide to untie the knot. For many people, the end of a marriage can be an extremely emotionally traumatic and stressful experience. Much of the latter comes from dividing assets such as money or property and how it will impact your financial stability post-divorce.

In this article, we’ll take a look at the role of property in the end of a marriage and how the courts (or the couple) decide who gets the house in a divorce.

What Will Happen to the House in a Divorce?

Due to the emotionally-charged nature of a divorce, it’s commonplace for proceedings to become hostile and very unpleasant for those involved. It’s safe to say that divorcing couples will want to achieve a resolution as quickly and painlessly as possible, and while ‘clean break orders’ do offer a way for people to divide their finances equally and go their separate ways without involving the courts, deciding who gets the marital home is often the factor that causes the most unrest.

Unfortunately, there’s no standard procedure or simple answer when it comes to the ownership of the family home after a divorce. This is, understandably, very frustrating for couples who would prefer a swift resolution. Your best option, in this case, is to have your family lawyer draft up a ‘Separation Agreement’ (if you are currently not ready or don’t want to divorce), or a ‘Consent Order’, if you and your spouse want to divorce and are able to agree on the terms.

If you want to go ahead with your divorce but are unable to agree on terms with your former spouse, the courts will take a variety of aspects into account to determine a fair resolution.

The Importance of ‘Home Rights’

One party will often move out of the family home during a divorce in an attempt to avoid any unnecessary hostility or conflict. When this happens, it’s vital to note that the person leaving the home doesn’t forfeit their rights to the property. In accordance with the law, both marital parties have ‘home rights’ until a financial settlement has been made.

It doesn’t matter if you aren’t the owner of the property or if your name isn’t on the mortgage agreement — as someone who lives in the property, you have home rights.

In simple terms, this means that you can live in the property until the divorce is resolved, unless the courts have ordered you to leave. According to the Family Law Act 1996, the home rights of each spouse are as follows:

  • The right to stay in your home unless the court has ordered you to leave
  • The right to ask the court to allow you to return to the shared property
  • The right to contribute to mortgage payments or make payments if your former spouse is failing to
  • The right to know of any repossession action taken by your mortgage lender
  • The right to join possession proceedings taken out by your mortgage lender

The Importance of Consulting a High-Quality Family Lawyer

During any divorce, regardless of whether you and your former spouse agree or disagree over terms, an experienced and knowledgeable family lawyer is your best and most valuable asset. Hiring a high-quality divorce solicitor will increase your chance of getting a resolution you are happy with, as they possess a deep understanding of the laws pertaining to property and divorce.

This is even more critical in cases where children are involved, as this will have a lot of sway on who gets the house in a divorce. Legal firms that specialises in family law have a skilled and knowledgeable team of experts that can offer exactly what you need. Not only do they have vast experience with marriage and divorce proceedings, but they also have the expertise required to advise you on all aspects of child law.