Legal Divorce FAQs
60. What happens to the family home (Former Marital Home – FMH) when a couple divorces?
The family home is usually the largest asset owned by a couple.
There are certain orders the judge can make, including transferring ownership to just one spouse or ordering a sale.
A judge can decide to have the property sold and to split the proceeds from the sale in a way that caters for the different housing needs of the spouses.
Alternatively, a judge may decide that the spouse living with the children can remain in the property until a certain time, such as when the youngest child reaches a certain age. The judge could rule that the property be sold at that point and then the proceeds are split equally. These are known as ‘Mesher Order’.
The judge might also allow one party to buy out another.
It will usually depend on what other assets the parties have and their income potential.
61. What if the property is owned by only one spouse?
It does not matter who the legal owner of the property is and who pays any mortgage.
A spouse can still have rights to live in the property while the divorce and financial agreement is being finalised. A spouse will also be entitled to a share of the value of the property.
62. Who stays in the marital home during the divorce proceedings?
Sometimes, both spouses make an agreement to share the living space and stay in the marital home. One spouse may wish to leave.
If a spouse wants the other to leave but they do not agree to do so, the court can issue an ‘occupation order’ to prevent one of the spouses from living at the property until a set time, such as when a financial order has been made. Occupation orders are usually only granted in specific circumstances, such as when there is a risk of harm.
63. What are home rights?
Both spouses have a right to occupy the family home (FMH), regardless of whose name is on the title deed if it is owned or the tenancy agreement if it is rented. Both spouses have these rights as long as they are married and until a financial order is made, declaring how the property is to be shared – whether through a sale or transfer of tenancy.
64. What should I do if I am not a named owner of the house?
First check if the property is registered on the Land Register. If you are not named as an owner, you can register home rights as this can stop your spouse from selling the house without a financial agreement in place.
www.gov.uk/get-information-about-property-and-land/search-the-register
If the property is registered, you can apply for home rights here (Form HR1):
www.gov.uk/stay-in-home-during-separation-or-divorce/apply-if-the-property-is-registered
Your spouse will be informed that you have applied for home rights.
If the property is not registered, you can apply for home rights here:
www.gov.uk/stay-in-home-during-separation-or-divorce/apply-if-the-property-is-unregistered
You can only apply to have home rights in one property at any one time. You can apply to transfer your home rights to another property owned by your spouse if you already have home rights in one.
65. What happens if both spouses are named owners of the property?
Joint owners are registered as ‘joint tenants’ or ‘tenants in common’. Neither owner can sell or transfer ownership of the property without the consent of the other.
- ‘Joint tenants’ equally own the whole property, so each will inherit the share of another owner if one dies. Joint tenants cannot leave their share to other beneficiaries in their will.
- ‘Tenants in common’ own a particular share of the property, so will not inherit the share of another owner upon that person’s death. Tenants in common can leave their share to their beneficiaries in their will. However, if you are married, this division does not matter when it comes to the matrimonial home as the legal division of matrimonial assets is not relevant to financial resolution where assets are divided between the parties.
66. What should be done if both spouses are named as tenants on a lease?
It may be advisable to change the joint tenancy into a sole tenancy agreement, with only the person who will continue to live in the property on the tenancy agreement.
This is because if someone is named as a tenant, they have a right to enter and stay in the property unless there is a court order such as an occupation order preventing them.
Both tenants will remain responsible for paying any rent and bills and will be able to end the tenancy agreement. If you don’t want your spouse to end the tenancy agreement without your consent, you should notify the landlord and you may need to apply for an emergency injunction to stop them from giving notice to end the tenancy.
67. What rights do you have as a sole tenant?
Both spouses have a right to live in the property as long as you are married, even if the tenancy agreement is in one name only, unless there is an occupation order in place to prevent a spouse from living there.
If you want to leave the property and your spouse wants to remain there, you can arrange for the tenancy to be transferred into their sole name. It is important to seek advice before doing this as it could affect your eligibility for certain types of social housing (housing rented out by local authorities or housing associations).
68. What rights do you have as the spouse of a sole tenant?
As the spouse of a sole tenant, you have a right to remain in the property unless there is a court order preventing you.
If you want to stay there and your spouse is refusing to let you or you want your spouse to leave while you remain in the property, you can apply for a court order to allow you to live in the property.
A court order does not change the tenancy agreement. If you want to stop your spouse from ending the tenancy agreement, you can apply for an emergency injunction.