Who gets the house in a divorce with children?

The end of a relationship, whether it is a divorce or the dissolution of a civil partnership, is a stressful, challenging time for all. As well as the emotional difficulty, there are also practical considerations to be concerned with. Inevitably, the financial implications are some of the most important, and this is an area that can become the most difficult to negotiate.

Our homes are usually the most significant purchase any of us makes, and so it will come as no surprise that which party retains ownership of the property is one of the biggest issues arising from any divorce proceedings. It becomes crucial beyond just the monetary aspect when children are involved too, as a stable home is so beneficial for them, so knowing who gets the house in your divorce is essential.

Every divorce is unique

Before we begin to assess how property is divided between parties in a divorce, it is essential to remember that every divorce is unique. Each one features parties with different circumstances, different needs and different expectations, and the law in the main reflects that. 

That being said, there are several options in your approach to the property during a divorce that can solve the issue before it becomes a legal problem. These are:

• Agree for both parties to move out of the home and sell it, with each receiving their share of the proceeds to put towards the purchase of a new home.
• One party buys the other out
• Agree for the parent with custody of the children to stay in the home without changing ownership, agreeing to sell and split profits between the two parties once the children have reached 18 or leave university.

There are other ways of dealing with this amicably, too, depending on the individual situation. However, if you cannot come to an agreement what happens with the property in a court administered divorce settlement?

The court looks at the overall situation 

Even if the property is not in your name, you may still have the right of habitation, especially if you are the one with custody of the children. The court decision itself will be based on several factors, including:

• Your children – the age of any under 18 children in the family and whom they are going to live with
• The age of each party in the divorce
• How long the marriage or civil partnership has lasted
• Earnings – Both current and future earning capacity of each party, and their responsibilities, such as childcare, post-divorce
• The contribution each party made to the marriage or civil partnership
• Health – Whether either party has a disability that requires a certain level of care
• The standard of living both parties have been used to

Children come first

The legal discussions around the property will focus on the children’s needs first, as you should expect. The exact course of action varies from court to court, but it is always minimising the disruption to children that is the priority.

The first option for this is what is known as a ‘Mesher’ order. It suspends the sale of the home until a specific event such as the youngest child turning 18, as described above as a mutual agreement option. 

Here though, the court will also decide the nature of the way the proceeds of the property are divided once the sale takes place too.

Another route is to issue to recommend a transfer of the property to one party, either as part of the overall financial settlement or where one partner buys the other out. Again, here the most likely outcome is that the party who obtains custody of the children will be the one the court recommends stay in the family home, as this is the approach that minimises disruption for them.

The court may decide that the best option is to sell the home and divide the proceeds appropriately, although, with children involved, this is unlikely.

Who gets the house?

We have talked about the ways you can come to an amicable agreement outside of court to decide how your home is dealt with during the divorce and the factors that a court will look at when deciding for you. Finally, we also looked at the ways the court can choose to assign ownership of the property, such as the Mesher order, among others.

With all this in mind, the answer to who gets the house is still complicated, it depends on each individual circumstances. In general, the court will always put the needs of your children first, and that most commonly means the parent with full-time custody will be the one preferred to stay in the existing family home. How that home is owned, and by who will vary again depending on the kind of order or agreement the court seeks.

It is also not the complete picture, in some situations it may not be practical for either party to retain the existing home, or it could be that the children and parent with custody are better placed to move to a new home. 

Key Takeaway

The situation always directs the answer, each solution is unique to those involved. In that sense, the answer to who gets the house as always, it depends. You should be aware that it likely will be awarded to the parent who has custody of the children, but not rely on that. 

Besides, it is essential to point out that in all of the options the court has to appoint ownership, the other party will receive recompense for this. Even for a Mesher Order, when the property is eventually sold, the court will have laid out the way the proceeds are divided between the two parties. The goal for the court is not to leave one party destitute, but to ensure that the property is dividing most suitably while providing each party with the means to move on and start a new life. 

If you are looking at divorce or the dissolution of a civil partnership, do not wait until it is too late. Make sure you put forward the most persuasive case possible by talking to our experienced divorce solicitors today. We can help you get the best result for your situation and ensure your best interests are taken into account in any court judgment.