Who Gets the House in a Divorce With Children?

September 11, 2024

If you are going through a divorce involving children, their welfare and safety will be your main priority.

In some circumstances, it can be challenging to determine who gets the house in a divorce especially if both parties are sharing residency (custody) arrangements.

There are a range of factors to take into consideration, including your financial situation, property ownership, and child arrangements.

In this article, we discuss some of the common questions concerning who gets the house in a separation with children.

While we hope this will be helpful, it should not be taken as legal advice. If you need any further support, our family law solicitors will be happy to support you further.

To offer insight into the complexity of shared properties when divorcing with children, this article covers:

• How is the family home usually divided in a divorce when children are involved?
• Does it matter who bought the home or paid the mortgage?
• Can the house be sold during the divorce process if children are living there?
• Can we agree on what happens to the house without going to court?
• What happens if both parents want the house?
• Can the house be split between parents?
• Can changes in custody affect who gets the house?

This article is purely for information purposes, and it should not be taken as legal advice. If you would like help with divorce and property law, our divorce and property solicitors will be happy to support you.

To speak to one of our Family Law Team, call us on 0800 1584147 or request a call back, and we will contact you shortly. Alternatively, email us at info@tayntons.co.uk.

How is the family home usually divided in a divorce when children are involved?

When deciding what will happen to a family home, the needs of the children will be considered first. Courts will often prioritise providing stability for the children, which may influence who stays in the family home.

This may mean the parent who will provide the children’s primary residency may be favoured to keep the home as this will ensure continuity for the children.

This does not mean, however, that the parent who does not have primary residency will lose their share in the home. It may be sold when the children get older and the proceeds split, or they may be compensated by way of other assets.

Does it matter who bought the home or paid the mortgage?

In UK divorce law, it generally doesn’t matter who bought the home or who paid the mortgage. The family home is usually considered a marital asset, meaning it belongs to both parties, regardless of whose name is on the title or who contributed more financially.

The court’s primary concern is to ensure a fair division that considers the needs of both parties, particularly the welfare of any children involved. Contributions, both financial and non-financial (like child-rearing and home maintenance), are typically taken into account when deciding how to divide the property.

Can the house be sold during the divorce process if children are living there?

If the children are living in the property, selling the house will generally be avoided where it is financially possible to keep it.

However, it may be made subject to a Mesher Order, which may mean the house could be sold once the children reach a certain age. After this, the proceeds will be divided according to the court order.

Alternatively, the property may be transferred into one party’s name, and the other spouse may receive a percentage when it is sold.

It is also important to consider the mortgage if you have one; it is common for one party to want to be released from the mortgage if they are no longer living in the property.

However, the other party may be unable to pay the mortgage on their own, in which case spousal maintenance or other financial arrangements may need to be made.

If it is not financially viable to keep the property, it may be sold.

Can we agree on what happens to the house without going to court?

In many cases, it is possible for financial and child arrangements to be made out of court.

Solicitors generally favour this approach as it is more time and cost-effective and aims to protect the welfare of the children involved by avoiding potentially long and contentious proceedings.

Many family law solicitors will use Alternative Dispute Resolution to help divorcing parties reach an agreement, which may involve methods such as mediation, negotiation, or arbitration.

Mediation is where both parties sit down with a neutral third-party mediator who facilitates a discussion in order to help both parties reach an agreement.

Negotiation is where both you and your spouse’s solicitors will reach an agreement on your behalf, involving both parties’ solicitors discussing how to reach a mutually acceptable agreement on how to divide property and assets fairly.

If you and your ex-partner agree on how to divide your property, you can apply for a consent order to make it legally binding.

What happens if both parents want the house?

The court will ultimately make a decision based on what is best for the children when determining who gets what in a divorce.

Usually, this means that the children’s primary caregiver will get the family home.

If both parents want the home, then the court will consider the children’s current living arrangements, their individual financial ability to maintain the home, the children’s wishes (if they’re old enough) and the emotional impact on the children.

Can the house be split between parents?

Yes, if it is in the best interests of the children, then the court may suggest a divorce house split between parents.

The court may permit one parent to remain in the family home until the children have reached a certain age.

The court may order the sale of the property and the division of proceeds between the parents. They may also transfer the proceeds to one parent, with the other receiving a lump sum.

If you and your spouse are divorcing and have agreed to split the home, a legal professional can advise on the division process and suggest what is best for the children.

Can changes in child arrangements affect who gets the house?

Changes in child residency (custody) can have a significant influence over who gets the house in a divorce with children.

The parent with primary residency is likely to have been awarded the house in the initial decision, but changes to this may allow the involved parent to argue for a change in property ownership.

If the initial order included a Mesher Order, then changes in residency may also trigger a deferred sale.

A Mesher Order is where the house is retained until the children reach a certain age.

If the parent losing primary residency no longer needs to keep the home, then the court may suggest its transference or sale in order to accommodate the new housing needs.

Contact our Divorce and Property Solicitors Team at Tayntons in Gloucester

Do you need help with divorce and property law in Gloucester, Cheltenham, the Forest of Dean or across Gloucestershire?

Speak to one of our divorce and property by calling us on 0800 1584147 or request a call back, and we will contact you shortly. Alternatively, email us at info@tayntons.co.uk.