Who Gets the House in a Separation?

When couples decide to separate, one of the most significant issues they face is determining what happens to the family home.

Who gets to stay in the house in a separation can depend on various factors, including marital status, property ownership, and agreements between the parties involved.

The emotional and financial complexities involved can make this process challenging. In this blog, Tiffany Shoesmith, Family Law Solicitor, explores the various scenarios that may unfold regarding the family home during a separation.

Do married and unmarried couples have the same rights to a house?

Married and unmarried couples do not have the same property rights post separation.. For a married couple, their house (if owned) is considered to be a marital asset which will be divided upon divorce. For an unmarried couple, the rights to the house depend on who the property is registered to along with other factors.

Married couples

For married couples, the former matrimonial home is considered a marital asset. This is regardless of whose name the property is registered in and/or who has paid for.

Careful consideration will need to be given regarding how the former matrimonial home is dealt with.  With married couples, all assets and liabilities need to be considered along with the factors listed in section 25 of the Matrimonial Causes Act 1973, which takes into account not only the financial aspects but also the parties involved and any child of the family

Contrary to popular belief, it is not always the case that assets are split 50/50  and it is sometimes possible to offset one party’s asset against another You should seek expert legal advice in this respect.

The former matrimonial home may need to be sold to release equity to both parties, or there may be a transfer into one party’s sole name.  Consideration will need to be given to any tax implications.

It is strongly advised to seek specialist advice in this respect. The primary consideration for the court with married couples is the welfare of any children of the family and this may delay any sale.

Unmarried couples

If the parties are unmarried much will depend upon whose name the property is registered in, any pre-separation agreements made between the parties and the history of their respective contributions toward the property and its upkeep.

If the property is owned and registered in joint names and there is no other agreement to the contrary, it is usually assumed they both have an equal share, but there are exceptions. For example, if one person contributed more money into buying or maintaining the property, they might be entitled to a larger share. This can be a complicated question of contributions and agreements, where specialist advice can be crucial.

Even if the property is only in one person’s name, the other person might still have a claim to it if they can prove they contributed financially in some way. This could mean helping with the mortgage payments or paying for or personally undertaking renovations or home improvements.  Alternatively, a party may be able to prove that it was the parties’ common intention for the property to be ‘owned’ in a manner which is different to what is on the title at the Land Registry.

Courts can also sometimes delay a sale where children are living in the home.

Even if you have no interest financially, if you are unable to re-house yourself or  have been a victim of domestic abuse then you may be able to apply for an Occupation Order which allows you to live, at least for some time, in the property and have your former partner excluded.

These types of orders can be complex and you should seek specialist legal advice as to the prospects of an application.

How can I protect my rights in the house?

If you and your partner are splitting up after buying a house, there are various protective steps that could be taken to protect your rights in the property, for example by registering rights at the Land Registry or entering into legal agreements such as a Deed of Separation.

If any of these scenarios apply then you should seek specialist legal advice.  It is possible that an agreement can be reached through Solicitor correspondence.  You could resolve any dispute out of court, for example using a consent order or a separation agreement.

If agreement cannot be reached then your Solicitor can talk to you about the options and how the court may be able to help.

Can my ex-partner keep  me out of the house?

For married couples, your spouse cannot generally make you leave the family home against your will. Even if the house is solely in their name, they don’t have the authority to force you out as you typically have the right to reside in the property until a divorce has been made final.

For both married and unmarried couples, if you are an owner of the property you will have rights to reside there.

Even if you have no other rights over a property, when you have lived in a home the court does have powers to ensure you are not left homeless and to protect you and your children if you have been treated badly or abusively and you should seek further advice on these options

Having a right to live in a property is not the only consideration. There are sometimes quite difficult issues around what is best for you or your children in terms of living arrangements on separation. Tempting as it sometimes is to take matters into your own hands, getting advice before doing so can prevent many problems later on.

If your partner has removed you from the house, such as by demanding your departure or changing the locks while you were away, it’s crucial to promptly seek legal guidance as they may be liable to face legal action.

Can I stay in my home with my children?

The extent to which arrangements for children affect financial matters does vary considerably depending upon whether you are married or not.

Ideally you would need to agree with your partner whether you can stay in the home with your children and what the plans will be to separate your finances, now, or later on, if it benefits the children to wait for some or all of the settlement to be implemented.

If both parties are unable to reach an agreement, then the court may have to decide where the children will live by taking into account what is in their best interests.

You should take specific legal advice on arrangements for children from your Solicitor as this is dealt with separately from any property or financial matters.

How can Butcher & Barlow help with legal advice on separation?

If you are going through a break-up, it is advisable to seek expert legal guidance to understand your rights to your home at the earliest opportunity.

Whether through negotiation or legal proceedings, Butcher & Barlow can provide tailored advice to protect your interests and achieve a fair outcome.

Do not navigate this complex process alone; contact us today for support and guidance.

Our Family Law Solicitors remain available for advice and guidance on any existing or new matter.

Please get in touch via enquiries@butcher-barlow.co.uk or directly with your nearest office to arrange an initial meeting.  Tiffany can be contacted at tshoesmith@butcher-barlow.co.uk

This blog is provided for general informational purposes only and is not intended as legal advice. The information here may not be applicable to your specific circumstances. Butcher & Barlow cannot be held responsible for any actions taken based on the information provided. Always consult with your professional legal advisor before making any legal decisions.