When a marriage ends, deciding what happens to the home can be one of the most complex and contentious aspects of a divorce settlement. 

Ben Dale, Solicitor in the Private Family Law team at Jackson Lees, explores the potential options available.

Who Has the Right to Stay in the Family Home?

The right to stay in the family home depends on ownership, financial contributions, and children's needs. If both spouses are named on the title deeds, they have equal rights until a settlement or court order. 

If the property is in one spouse’s name, the other may still have rights if they contributed financially or if children are involved. A “Home Rights Notice” can prevent the owner from selling or mortgaging the property without consent.

If there are concerns over the welfare of children, a court can grant an occupation order to exclude one party and decide who stays in the home. These orders are temporary, requiring discussions for long-term property plans. 

What Happens to the Family Home in a Financial Settlement?

There are several possible outcomes when determining what happens to the family home.

Selling the Property

The property may be sold, and the proceeds divided according to the financial agreement or court order. This is often the best solution when both parties wish to secure separate accommodation.

Timing the sale is crucial, as property market conditions can affect the price and both parties will need to agree on a realistic timeline to help prevent unnecessary stress and disputes. 

If there is an outstanding mortgage, the lender must be informed, and the remaining balance must be settled.

Mesher and Martin Orders

In some cases, the sale of the property may be deferred until a specific event occurs, such as the youngest child reaching adulthood. This can be achieved through Mesher and Martin Orders.

The welfare of children is a key consideration in any arrangement and courts generally prioritise stability for children. However, Mesher and Martin orders require financial planning, as it can leave one spouse unable to access their share of the property’s value for many years.

Keeping the Home: How to Buy Out Your Spouse

One spouse may buy out the other’s share, making them the sole owner so they can remain in the property. 

Buying out a spouse typically requires a financial assessment to determine affordability. This may require re-mortgaging, where the remaining spouse takes out a new mortgage in their sole name to release funds for the buyout.

Alternatively, assets like savings, pensions or investments can offset the value of the home and reduce the need for a cash buyout.

Can One Spouse Be Forced to Sell the Home?

 If an agreement cannot be reached, the court may order the sale of the home, considering each spouse's finances and housing needs. A spouse may apply for an Order for Sale in situations where the property is jointly owned, and one party refuses to cooperate.

If no children are involved and neither spouse can solely afford the mortgage, selling the home may be necessary. The court will consider each spouse’s finances, housing needs and any pre-existing agreements before proceeding. 

Protecting Your Rights

If you are married to the owner but not named on the deeds and you're worried about losing your home unfairly, you can protect yourself by registering a Home Rights Notice to prevent a sale without your consent, apply for an occupation order, or seek financial relief through the court.

How Can Jackson Lees Help?

At Jackson Lees, our expert specialist family law solicitors are here to assist you through your divorce settlement. We offer clear, strategic advice tailored to your unique situation, ensuring you achieve the best possible outcome. Whether you need representation in a dispute or guidance through alternative dispute resolution methods, we are here to support you. 

If you are facing divorce and need guidance on the future of your family home, give us a call or make an enquiry.