30 Jan Getting divorced – Should I leave the family home?
This is a question I often get asked. It is difficult to continue living in the same property once one of you has decided they want a divorce and so often people chose to leave to avoid the difficult atmosphere.
The information below applies where the family home is jointly owned by you both or is solely owned by one of you. If you are being subjected to domestic abuse then your safety is paramount, if this is the case you should seek advice straight away about how to safeguard yourself from further abuse.
Jointly owned family home
By jointly owning the property, regardless of being married, this gives you both the right to live at the property, you therefore do not have to leave the family home until you are ordered to do so by a court order, although this does not mean that you cannot leave the family home earlier if you feel that is the right decision for you. However, before you make a decision you should seek legal advice because once you’ve left the home, your spouse may make it difficult for you to return to the home, even if they should not do so.
Family home solely owned by one of you
If your spouse solely owns the property, then due to you still being married you have a right to live at the property, you do not therefore have to leave the home until you are ordered to do so by a court order. You should register a Home Rights Notice at the Land Registry against the home to protect your interest in the property. The financial matters will need to be resolved by a financial consent order before Decree Absolute in the divorce proceedings is obtained.
Reasons to remain living at the family home
It is normally advisable to continue living in the family home until a decision is reached about what is to happen to it long term. Once an agreement is reached this should be recorded in a financial consent order and submitted to court for consideration by a judge, alongside the divorce proceedings. The financial order once approved and the divorce is finished will set out what is to happen to the family home.
- Some of the reasons why it is advisable to continue living at the family home are:
On a practical level, the finances of you and your spouse may not stretch to paying for the family home and a new place for you to live. Even if you are the one to leave the family home you may still have ongoing responsibilities towards the running costs of the family home, to maintaining your spouse or the children. You may struggle to pay for those costs and maintenance on top of the cost of living elsewhere;
- If it is decided that the family home is to be sold it is easier to make sure the property is marketed, presented well for viewings and that the sale progresses if you are living in the property;
- You may find it difficult to retrieve items from the family home once you’ve left;
- You will find it easier to organise a valuation of the home, which may be needed if you are living in the property;
- While both of you are living in the family home there will be more incentive for both of you to resolve the financial matters, to include what is to happen to the family home;
- If you have children living at the family home then it will be easier to maintain a relationship with them while living at the family home, until it is decided who they will live with and whether the family home is to be sold or kept as a home by one of you. By leaving the family home and leaving the children living at the family home with your spouse, this may affect your application to have the children live with you if you later decide that is what you would like to happen.
- There may be tax implications for you if you leave the home upon it eventually being sold or transferred.
- If the home is solely owned by your spouse and you move out, if Decree Absolute is granted in the divorce proceedings you may lose your right to return to live in the family home.
There are a lot of factors to consider before making a decision about whether to stay or go. Please contact me, Genette Gale (Family Solicitor and Collaborative Lawyer), for further advice if you are separating or divorcing. It is always best to get legal advice, at the start, even if you hope to reach an agreement with your spouse, this way you will be clear about what your rights are and what the court will expect from both of you. It can also help avoid misunderstandings. You can call me on 01747 852377 or email me firstname.lastname@example.org
The information in this article was correct at the time of writing on 30 January 2019, the law and rules are constantly changing and so you should ensure that you obtain up to date advice from your solicitor. Also, your situation may involve complexities or facts which may mean the information set out above may not apply to your particular circumstances.