Who gets the house on divorce?

Family law solicitor Paul Airey at Cumbria Family Law in Carlisle explains the options for the family home following a separation or divorce and the ways the court may approach a dispute about who should occupy.

Stay or go?

For many separating couples the family home becomes a battleground. Understandably both parties might prefer to stay rather than give up the home in which they have an emotional and financial investment. Further, where it is the home of the children, the thought of walking away might be just too difficult to bear. 

But both parties choosing to remain as the relationship breaks down might come at a cost. If the situation is anything less than civil then there is real risk that an already fraught scenario will escalate. This could increase bitterness and resentment, jeopardising the potential for an amicable settlement. At worst, the tensions could have a detrimental effect on the children.

So what can I do?

1. Try to reach agreement about who will stay and who will go immediately and before tackling the wider financial and childcare issues. Remember that if there are tensions the wellbeing of your children should be a key consideration. It might be that mediation can help to iron out these early issues as well as an overall settlement further down the line. 

2. Act quickly to settle the wider financial issues and resolve ownership of the marital home. The decision as to who stays and who goes should follow from there. However bear in mind that your Solicitor will want full disclosure of all assets before advising you upon settlement. Further, if there is an existing mortgage on the property, or if one is required, then this might cause delay.  

3. Seek an injunction from the Court. The only way to legally evict your spouse is through an Occupation Order. To obtain one then you will need to prove to the Judge that you or your children are likely to suffer significant harm as a consequence of your spouse's behaviour, and that this harm is greater than harm  your spouse or the children are likely to suffer upon being excluded. Your evidence will need to be strong so make an appointment today to discuss your circumstances. We can make an urgent application, without your spouse's knowledge, if you are at grave risk of harm, but in such circumstances you should also ensure to contact the Police. 

Can I change the locks?

In short, no. If the property is held in joint names then both parties have a right to remain in spite of marital breakdown. Even if the home is held in just one spouse's name the situation is not clear cut. 

Need further help?

If you find yourself asking these questions then you should take legal advice. For more information or to arrange an initial meeting, contact Paul Airey . 

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice, and the law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.