Who gets the house in a divorce with children?

The family home will often be the most important matrimonial asset during any divorce case, and a question our clients often have is “Who gets to keep the house in a divorce?”

Divorces are often especially challenging for children both mentally and emotionally, which is why it is essential for them to live in a place where they feel safe and protected. This is why the decision of who will stay in the family home following a divorce with children is incredibly important and requires careful consideration.

In this blog, we will cover:

• Property Orders
• Who is most likely to get the house in a divorce with children
• What factors influence the decision on who gets the house?
• Does the children’s primary caregiver automatically get the house?

There are no set rules for splitting the house in a divorce, however, the welfare of children is the Court’s main priority, so before deciding who will remain in the family home, the court will want to ensure that the home is well suited to their needs and that the impact to their lives is as minimal as possible.

Often, the parent who is considered to be the primary caregiver to the children will be more likely to retain the family home. 

Property Orders

Just because you are not granted the family home following a divorce does not mean you will be automatically written off any property deeds or be exempt from paying a mortgage. Arrangements can be made that will provide a framework for how the finances of the property will function after the divorce, these can then be finalised by the court within a Property Adjustment Order.

In many cases, the parent who remains in the home will be permitted to live there up until a certain time, typically this is when their youngest child turns 18 years old. Following this, the house should then be sold, and the proceeds divided between the parties accordingly. Alternatively, the property can be transferred into one of the party’s names and the ex-spouse will receive a pre-determined percentage after the property has been sold.

The mortgage is another factor that will need to be considered as often the parent who will be vacating the family home will want to be released from the mortgage, allowing them the funds to purchase a new property or find another accommodation to stay in.

It should also be taken into account if the person who will remain in the family home will be able to afford the mortgage payments on their own. If they are unable to, it may be possible to allocate funds as part of spousal maintenance payments to accommodate this.

This is not to owned property, as similar preparations can also be made should you and your partner have been living in a rented property. For example, it is possible for the court to transfer a Joint Tenancy into one party’s spouse’s name.

Does the children’s primary caregiver automatically get the house?

Whilst the primary caregiver does have a higher likelihood of being permitted to stay in the family home following a divorce, each case is different, and this will depend on specific circumstances. Ultimately, the court will aim to ensure that the children have a stable environment to grow in, however, it will also take each spouse’s financial capabilities into consideration.

Furthermore, if the two spouses can come to an amicable agreement either privately or with the assistance of an experienced solicitor then it is entirely possible for the non-primary caregiver to retain the family home.

What factors influence the decision on who gets the house?

Should this issue go to court, the court will take aspects such as the children’s well-being, each parent’s financial capacity as well as their ability to maintain the property into account. Prenuptial or post-nuptial agreements may also influence the court’s decision as well.

Overall, the wellbeing of the children will be the highest priority when deciding who will get the house.

How can we help?

At Clarkson Wright and Jakes, our divorce solicitors are adept at handling all sorts of different divorce cases. No matter the circumstances of your divorce, we will be available to support and advise you on the best course of action.  

We understand that going through a divorce can be extremely upsetting as it is, so we take extra steps to reduce any stress you might be feeling and handle all the legal aspects of the process on your behalf. This way, you can focus on moving on with your life as quickly as possible. We will tailor our advice to the specifics of your case and aid you in coming to an agreeable solution.

Speak to our divorce solicitors in Orpington

To speak to one of our friendly members of staff, you can call us on 01689 887887 or email us at cwj@cwj.co.uk. You can also use our contact form to request a call back.