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Divorcing with children – who gets the house?
Separation & Divorce
Divorce is typically considered one of the most stressful experiences that individuals go through, alongside moving house and loss of a loved one. This is often because it involves uncertainty and sudden change. Your life has gone from planning for the future and security to grieving for what once was. You are left with the immediate thoughts of where are you going to live and whether this will involve moving home.
Where you have children, especially young children, it feels even more crucial to find a solution that provides them, and you, with stability. The family home often becomes a symbol of comfort and security in the midst of unpredictability and disruption. I understand that establishing who gets the house in a divorce or whether it should be sold is a vital decision and can cause anxiety.
There are no set rules as to whether a house would be retained or sold (either immediately or at some future time) as it will all depend on your own circumstances, and many factors will be taken into consideration in particular needs and affordability.
If I have children that means the home has to be kept until the youngest is 18?
Some believe that if they have young children, they have the security of knowing that the family home will not be sold but that’s not always necessarily the case. As detailed above, there are no set rules that determine what happens to the family home during a divorce. The family home is one of the assets that needs to be considered.
The law in England and Wales confirms that the first consideration must be the welfare of any minor children of the family under the age of 18. In general, the law strives to ensure that any settlement upon separation will result in the children having a secure home with as minimal disruption to their standard of living and well-being as possible however this does not mean that remaining in the family home is the right outcome.
As above, the Court’s first consideration when taking into account a fair division of finances is the welfare of any children under 18 however, they also have to explore other factors that are set out in Section 25 of the Matrimonial Causes Act 1973. One of those factors is looking at the financial needs, obligations and responsibilities of each party to the marriage both currently and in the foreseeable future.
If the children are spending considerable time with both parents – even if the time distributed between the two is not equal – the law is cautious about any settlement which would result in parents having very different standards of accommodation e.g. one parent living in a large luxury quality 4-bedroom house and the other a small 1-bedroom shared flat. Housing is carefully considered to ensure that the children will have a good home with both parents.
If, after considering your specific circumstances, it is possible to retain the family home while dividing the financial assets fairly—such that the other parent can also secure suitable housing for the children (of similar, though not necessarily identical, quality—and not necessarily through immediate property purchase)—then the Court is likely to support that outcome. However, this is not always feasible. It may result in the other parent being unable to meet their own housing needs, or there may simply not be enough funds to keep the family home.
In some cases, a possible solution is for the parent with whom the children spend more time to retain the family home, with the other parent deferring receipt of their share of the equity. This arrangement may be the only way to meet the children’s housing needs, but it requires careful consideration of how to treat the other parent fairly.
Key questions include:
- Can the non-resident parent be released from the mortgage immediately?
- How will their share be protected?
- Who will cover the mortgage and household costs in the interim?
- Are there any potential tax implications?
All of these factors must be thoroughly addressed. The law will consider all of the circumstances of the case, children being one of the factors but often the reality is that if there are not sufficient funds to provide two houses from one pot then difficult decisions will have to be made. What is fair for one couple may not be fair for another. Each individual’s circumstances are not the same and this is often overlooked. One thing I would always advise to my clients is to seek legal advice before discussing matters with friends and family because a likely outcome for them might not be the same outcome for you.
What can be ordered about the home?
As outlined above, there are several ways that the family home can be dealt with. These include selling the property, to one party retaining the family home (with the other receiving their agreed share, either immediately or at a later stage), or deferring a sale until specific events occur—such as a youngest child turning 18.
The law aims to prioritise the stability and welfare of the children, while also ensuring a fair outcome for both parents. Much will depend on what is affordable and what arrangements can be made to ensure that everyone is appropriately housed.
A type of order that can be used in cases where there are insufficient funds to rehouse both parties or even one party if there was to be a sale of the home is an order whereby the parent with primary care of the children would remain in the family home until certain events took place (known as trigger events) the main typical one being the youngest child reaching the age of 18 or finishing full-time secondary education. At that point the family home would be sold, and the proceeds divided in accordance with a prior agreement. While such orders remain possible, they come with various pros and cons that need to be carefully considered.
The primary advantage of this arrangement is that it minimises disruption to the children as they stay living in the family home. However, there are also disadvantages: the other parent may have to wait to access their share of the equity (and may remain tied to the existing mortgage), and both parents face a delay in resolving their own housing situations, as the sale of the property is deferred to a future date—at which point their circumstances may be uncertain. These types of Order are typically seen as an Order of last resort or where both parents agree that the children should be retained in their family home until a future circumstance. In some situations, even where children are minors, selling the family home immediately may be the fairer and more practical option.
This type of settlement can take place in different forms:
- The property remains in joint names subject to agreed conditions –with a clear legal document setting out how it will be dealt with in the future.
- The property is transferred to one person immediately with the other persons financial interest is deferred and secured by way of a legal charge over the property, payable on an agreed future event (e.g. remarriage, or children reaching adulthood).
The advantage of the transfer and charge is that it may enable the other parent to be released from the mortgage on the family home but if that is not possible then remaining on the family home and mortgage for a limited period may be the most practical compromise.
Summary
The answer to the question of “who gets the house” is, it depends and there is no one-size-fits all answer. The fact that there are children within the marriage is an important factor but not the only one. The law aims to ensure that the housing need of the children is secure as far as possible but whether this is remaining in the family home, moving to other owned accommodation or even a sale with both parents being in rental accommodation depends entirely on your own particular circumstances.
I understand that for anybody going through this, it can be a frightening and unsettling time. I recommend seeking advice from a specialist family lawyer like myself so that we can discuss your particular circumstances and what the most likely outcome would be for you. I recognise that as a parent your priority is to make sure that you and your children are looked after and have stability in such an uncertain time and having an expert professional on your side to assist you in reaching a decision is crucial.
Pauline is a highly experienced family lawyer offering a range of services from legal advice, Non-Court Dispute Resolution and Arbitration for financial matters on divorce.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
