In many divorce proceedings, the family home typically stands out as the most significant asset. When children are involved, courts prioritise their well-being throughout and after the divorce, with their living arrangements playing a pivotal role.
Divorce can be a trying and emotional period for children, underscoring the need for a safe haven. Consequently, determining the ownership of the family residence in divorces with children is a weighty decision that demands careful consideration.
Here, we delve into how courts determine the allocation of the family home in divorces involving children.
Children Are the Top Priority
There are no strict guidelines dictating the fate of the family home in a divorce, as this hinges on several factors, with the presence of children being the most significant. In England and Wales, the law places a premium on the well-being of any children involved. Therefore, in determining who retains the house in a divorce involving children, the court’s primary concern is ensuring that the children have a stable residence and that their quality of life remains minimally affected.
Typically, the parent identified as the primary carer (responsible for the children’s day-to-day needs) may have the right to remain in the family home, tying the house’s allocation closely to child custody. This approach by the court aims to mitigate disruption for the children involved.
Property Orders
Not being granted the family home does not automatically exclude a spouse from the property deed or mortgage obligations. Alternative financial arrangements can be established concerning the property, which can be formalised by the court through a property order.
For instance, a scenario might involve permitting a parent to reside in the family home with the children until a specified event, such as the youngest child turning 18. Following this event—or another agreed-upon circumstance—the house would be sold, and the proceeds would be distributed per the court order. Alternatively, ownership of the property could be transferred solely to one person, with the other spouse receiving a predetermined share upon sale.
Similar arrangements can apply if the property is rented, as the court can transfer a joint tenancy into one individual’s name. For homeowners with a mortgage, it’s important to address this aspect as well. Often, the departing spouse wishes to be released from the mortgage, granting them greater financial flexibility to secure new housing.
In such situations, it’s crucial to assess whether the remaining occupant of the family home can sustain mortgage payments independently. If not, financial support may be required as part of spousal maintenance to cover housing costs, including the mortgage.
Seek the Advice of an Experienced Family Lawyer
When determining who retains the home in a divorce involving children, your initial step should always involve consulting with a specialised family lawyer. As a parent, your foremost concern is ensuring the well-being of your children throughout and beyond the legal proceedings, and achieving this requires the expertise of a legal professional well-versed in such matters.
It is essential to locate a divorce solicitor who possesses exceptional skills and adopts an approach tailored to your specific circumstances. This choice will provide reassurance that your family lawyer is competent and prioritises your best interests. Additionally, they will offer crucial guidance should any other conflicts arise during the divorce process.
