Divorce is never easy, especially when children are part of the picture. For many separating couples in the UK, the family home is not only their largest financial asset but also the centre of family life, and as a result decisions around who gets the house in a divorce with children are particularly emotionally charged.
Understanding your rights when it comes to family law – and how the courts tend to approach such cases – is essential in planning your next steps.
Who gets the house in a divorce with children?
There is no simple, one-size-fits-all answer to this question. In England and Wales, the family court has discretion when dividing assets, and the priority is always the welfare of any children involved. The law requires that children’s requirements come first, especially their need for stable housing.
This means that, in many cases, the parent who is the primary carer for the children may be allowed to stay in the family home, at least until the children reach a certain age. However, this doesn’t necessarily mean that the other parent loses their financial interest in the property. The court may make a Mesher order ( which gets its name from the case of Mesher v Mesher [1980]), which allows the sale of the property to be postponed until a trigger event, such as the youngest child turning 18.
It’s important to remember that every case is unique. But when deciding what should happen to the family home, the court will consider:
- The welfare of the children – ensuring they have a secure and stable place to live that’ll help them through the divorce.
- The financial resources of each parent – including income, savings and borrowing ability.
- The housing needs of both parents – recognising that the other parent also needs somewhere suitable to live when the children spend time with them.
- The length of the marriage and contributions – both financial and non-financial contributions, such as raising the children.
Divorce and selling the family home
In some circumstances, selling the family home is the most practical solution after divorce. This might be the case if neither parent can afford to maintain the mortgage on their own, the property is too large or costly to upkeep, or both people simply want to make a clean financial break.
The sale proceeds can then be divided, either equally or according to what the court deems fair, taking into account the children’s needs and the overall financial settlement. In situations where the home must be sold but children are still in school, the court may delay the sale until it is reasonable for them to move.
Does no-fault divorce affect who gets the house?
Since April 2022, divorcing couples in England and Wales can apply for a no-fault divorce, meaning neither side has to prove wrongdoing. While this has simplified the process of getting a divorce, it does not directly affect how the court makes decisions about the family home.
Property decisions remain focused on fairness and the welfare of children, rather than the reasons for the marriage breakdown. This means the shift to no-fault divorce may reduce conflict, but the legal principles that dictate who stays in the family home remain the same.
If you’re facing divorce and worried about your housing situation, it’s a good idea to seek professional legal advice early from a solicitor experienced in family law. This will help you understand your options and make informed decisions for both you and your children.
For legal advice relating to divorce and family law, contact Amicus Law today.