A divorce or separation is often an emotional time. People don’t picture their marriage ending when they first begin the relationship. Navigating feelings is difficult enough, but there are also a lot of logistics and negotiations involved. Whilst property and assets are being divided up, it’s not always clear who is entitled to remain in the family home during a divorce or separation.
Reasons for Divorce or Separation
There are many things to take care of when a couple decides to officially part ways. If children are involved, custody needs to be discussed. Marital assets, such as mortgages and credit cards, need to be divvied up. Normally, the most valuable asset a married couple will need to split is the family home.
Generally, the easiest way to split assets is for couples to come to a separation agreement between themselves. Expert mediators can be called upon to assist in this process and offer professional advice.
However, it’s not always as clean cut as this. There are various reasons for divorce. Unreasonable behaviour is the most common cause of separations and divorces, making up 45% of cases in the UK.
Before the 2020 updates to The Divorce, Dissolution and Separation Act, there were 6 major reasons a married person could file for divorce. These included:
- Unreasonable behaviour
- Separation of 2 years (with consent)
- Separation of 5 years (without consent)
After 2020, a couple can jointly declare their marriage has broken down beyond repair. This meant blameless separations could result in divorce, and also prevented one partner from locking the other into a marriage against their will.
If a couple are unable to make amicable arrangements themselves, they will need to apply to the family court for a “financial order”.
How Are Assets Split in a Divorce or Separation?
From a judge’s perspective, the main concern is that “needs” are met. Children’s needs are prioritised above all else. Otherwise, the judge will ensure each party has what they need in order to pay for housing, or bills etc. before assets are divided.
Considerations such as the length of the relationship, as well as both party’s ages, assets, earning capacity, living expenses, and more are taken into account. In some cases, each person’s conduct may be looked at as a factor.
The court always aims to split assets fairly and equally. However, it is important to note that “equal” does not always necessarily mean half-and-half. When going through a divorce or separation, it’s important to know your matrimonial home rights.
What Are Matrimonial Home Rights?
In the UK, it doesn’t matter whether a house belongs to both parties within a marriage or civil partnership, or if only one person owns the property. This is down to home rights.
If you are in a marriage or civil partnership, home rights give you the right to:
- Stay in your home, regardless of who owns it (unless the court excludes you from being there)
- Ask the court to let you return home, if you had previously moved out
- Register your home rights with the Land Registry, so it can’t be sold without your knowledge
- Pay the mortgage if the named owner stops paying it themselves
- Be made aware of any mortgage repossessions, as well as apply to be joined in any repossession proceedings taken by the lender
Who Gets to Stay in the Family Home During a Divorce or Separation?
Divorces don’t finalise overnight. Not everyone is able to move into different accommodation or rely on relatives and friends putting them up in the meantime.
If you and your partner jointly own the family home, you both have the right to remain living in it during your separation or divorce.
You still have rights even if your partner is the named owner of the matrimonial house. This means you can still stay there during a divorce or separation, provided the house was actually being used as the family home – not a holiday home, for example.
Based on whether your home is or isn’t registered with the Land Registry, you’ll need to fill in different applications when applying for home rights. These applications can both be found on GOV.UK.
Home rights only apply during the separation or divorce process. When a financial settlement is reached by the court, a permanent agreement will come into effect. Depending on what has been agreed, it may mean it’s time for one half of the couple to live elsewhere.
JMR Solicitors Can Help
If you’re planning to file for a divorce, JMR Solicitors is on hand to help guide you through the process. Our team of legal experts, based in Manchester, can provide assistance to ensure you get the best outcome when arranging agreements around your divorce.
Separations are never pleasant, so JMR is here to make the process as simple and stress-free as possible.
To speak to a member of our team about your separation or divorce, please contact us on 0161 491 3933, or email email@example.com.