09th Jul 2020

Divorce – Should I leave the family home?

Should I leave the family home?  What are my rights and obligations?

FLiP answers the questions which arise when an individual is making the difficult decision to leave the family home. 

The decision to move out of the family home can weigh heavily on the mind. It carries huge significance – both practically and emotionally – and may mark what is the beginning of a process of separation and ultimately divorce. It can also be the resolve needed to acknowledge the end of your relationship and allow both you and your former partner to focus on the financial aspects of separation. You can both have your own space, both mental and physical, allowing you to make important decisions about your future.

Where children are concerned, it is natural to be worried about how they will feel and how they will cope with such a significant change, as well as what the arrangements for spending time with the children will look like going forward. Where there is domestic abuse and a concern for safety, moving out of the property may be done out of pure necessity.

For many, the family home represents more than just bricks and mortar. The emotional attachment and sentimental value of a family house cannot be ignored but in reality, a house is likely to be the most valuable asset owned by your family. Either way, a settlement may be reached which allows for one of you to stay in the family home if there are sufficient funds, or the home will need to be sold to allow both of you to re-house.

From the legal point of view, you may have questions as to whether moving out of the family home is a sensible move to make. For a more detailed look at the legal and practical considerations when one party leaves the family home, please see our blog here – what happens if I move out of the house?

The family home is in my partner’s sole name. Do I have any legal rights and what will happen if I leave?

If you and your partner are married, as a general rule, the family home will be considered a matrimonial asset regardless of ownership. This means that the family home will form part of the matrimonial pot for division in the overall financial settlement. Further, as a spouse, you will have ‘home rights’ in that property by virtue of your marriage. In order to protect your home rights, you can register a Home Rights Notice with the Land Registry (or a Class F Land Charge where the property is not registered). This prevents the sale or re-mortgage of the property by the owner whilst the notice subsists.

If you are not married, you may still have acquired an interest in the family home even if you are not the legal owner. Importantly, the legal rights of unmarried couples are not aligned with those of married couples and unmarried couples are not afforded the same financial protection on relationship breakdown as a result – take a look at our dedicated website page on living together. Specialist legal advice is essential in this situation to establish whether or not you may have acquired a beneficial interest in the property.

The family home is in our joint names. What will happen if one of us leaves the property?

The legal ownership of the family home will of course remain unchanged if one of you leaves and until such time as a financial settlement is reached and the terms of a financial order have been implemented. You both have equal rights to occupy the property unless an order such as an occupation order has been made in the interim which regulates occupation of the family home.

In so far as a mortgage is concerned, you will remain jointly liable to pay the mortgage (on the basis of a joint mortgage) so it is important to establish whether the remaining party will be responsible alone for the mortgage repayments or whether these costs will continue to be shared. In any event, until such time as a financial settlement has been concluded, if your name is on the mortgage, you continue to be responsible for discharging payments. The same can be said of any utility bills in your joint names. This is something to bear in mind if you leave the family home and affordability of outgoings on two properties is likely to be an issue.

Should I continue to live in the family home with my partner?

There are some obvious financial savings and practical advantages of continuing to live under the same roof, especially if you have children. This tends to only be possible if you and your partner are on relatively good terms despite the relationship having broken down. In some cases, you may have no choice but to continue to live together due to financial constraints. This can be particularly challenging and difficult for all concerned, not to mention the impact on the children if tensions are high between you and your partner.

Whatever the reason for continuing to live in the same home whilst you are separating, you must make sure that you can demonstrate that you are both living separate lives despite continuing to live under the same roof. If you later decide to divorce then you will need to demonstrate to the court that you have maintained separate lives during that period. The way you have been living will be reviewed by the court. Separated but living together in the eyes of the law means you must maintain separate households. Essentially this means you must lead separate lives, despite the fact you are living under the same roof.

It is important to take specialist legal advice if you are thinking of leaving the family home permanently or if you have already done so. For more information, please contact any of our leading family and divorce lawyers on hello@flip.co.uk or telephone 020 7420 5000.