Can I Stay in the Family Home After Separation?
February 2023
Worrying about whether you can stay in the family home if you separate is one of the main reasons why people take legal advice from a family solicitor. Understanding your family law rights is the first step in helping you make informed decisions about your separation and divorce.
Our specialist family lawyers can answer your questions on whether you can stay in the family home after your separation. The key advice is that, unless it is not safe for you to stay, you should not move out of the family home until you have talked to a family solicitor about your rights and your financial settlement.
Initial Discussion
This summary provides general information and does not constitute legal advice on any individual circumstances.
For an initial discussion and a no-obligation quote, get in touch with us today by simply calling us on 01234 343134 or email us at enquiries@fullersfamilylaw.com and a member of our team will get back to you.
Can I Stay in the Family Home After Separation?
If you or your spouse decide to separate neither of you can be forced out of the family home unless:
- The court makes an order that requires you or your spouse to leave the family home until a specified date or until the court makes a financial court order in financial settlement court proceedings
- The court makes a financial court order that includes an order for the sale of the family home or the transfer of the family home into your spouse’s name
Many people assume they have no right to stay in the family home after separation if the property is owned by their husband, wife or civil partner. That is not correct. Your marital homes rights are based on your married or civil partnership relationship status rather than on property law.
If you are not the legal owner of the family home then your rights should be protected by your family solicitor registering a notice with the Land Registry to notify any potential purchasers and lenders of your claims over the family home.
How Does the Court Decide if I can Stay in the Family Home after Separation?
The criteria used by the court to decide if you can stay in the family home after your separation depend on whether you are applying for a temporary order (an occupation order) or asking the court to make a long-term decision over the future ownership of the marital home as part of divorce financial settlement court proceedings.
If you are asking the court to order that the family home is transferred to you (or retained by you) in divorce settlement proceedings, the court will need to ensure that it has all the information it needs to make a fair financial settlement, such as:
- The value of the family home.
- The amount outstanding on the mortgage and the monthly mortgage payments.
- Whether the mortgage company will release your spouse from their obligations under the mortgage if the house is transferred from your joint names into your sole name.
- Your housing needs and the costs of rehousing yourself and your spouse and any children. Your housing needs will depend on factors such as the number of dependent children you have and the standard of living enjoyed by you during the marriage.
- The value of other assets, such as investments or the family business or pension transfer values.
- Your income and your mortgage capacity, and that of your spouse.
- Whether you signed a prenuptial agreement before your marriage and, if so, what the agreement says about what should happen to the family home if you separate.
If you want to stay in the family home on a long-term basis after your separation it is best to talk to your family solicitor about your reasons. For example, the property may have been owned by you before your marriage, or you may not want to leave the property for emotional reasons, or because the children do not want to leave, or they are settled at local schools, or the property is close to your work.
Understanding the strength of your views about staying at the family home is important so your family solicitor can represent your interests and secure a financial settlement that is fair and meets your needs. For example, your family solicitor may need to secure a spousal maintenance order to enable you to afford the mortgage on the family home so you can stay at the property.
At Fullers Family Law our specialist family solicitors can help you gather the information you need to help you stay in the family home on a short-term or long-term basis after your separation and advise you on the likely range of orders the court may make in financial settlement proceedings.
How Can Fullers Help?
We understand that finding a solicitor that you feel understands your own specific situation can be a daunting task. So you can book a free callback with us here and/or arrange a free 20 minute consultation.
We have also created a series of fixed-price consultation meetings with a full ‘no questions asked’ money-back guarantee promise.
For an initial discussion and a no-obligation quote, get in touch with us today by simply calling us on 01234 343134 or email us at enquiries@fullersfamilylaw.com and a member of our team will get back to you.
