In Divorce, Who Gets the House and Children?

Author:
Jane Auty
Partner, Regional Head of Family Law
Date:
31/01/2019

If you and your ex-partner cannot agree who keeps the house and children following a divorce, there are a number of options available to try and reach a resolution. Ultimately, if you cannot reach an agreement, a Judge can decide for you. The decision is always based on the best interests of your children.

Property, Children and Divorce

When a marriage ends in divorce or separation, two of the most frequent questions are – Where should the children live and who gets to keep the house?

There is no easy answer. Every divorce is different and it depends entirely on the circumstances. So, who decides? Ideally, you and your ex-partner. Otherwise, it will be up to a Judge.

For initial advice get in touch with our Divorce Solicitors.

Call us on 08002605010 or request a callback and we will help you.

Arrangements for the Children in Divorce

Some people believe that during the divorce process, the Court routinely makes decisions about their children. This is not true.

Instead, you are encouraged to make your own arrangements. Going through the Courts usually increases animosity between you, and it can be a long and expensive process that leaves everyone feeling dissatisfied.

That’s why the law promotes a collaborative approach. Thanks to mediation and other forms of dispute resolution, parents are often able to agree on the arrangements for their children. This is particularly true of over-arching decisions, such as where a child should live.

If relations between you and your ex-partner are especially tense, you might not think it possible to agree on anything. Emotions are often high and reaching an agreement in relation to something as important as your children is very difficult. It’s very important to put your differences aside and focus on the needs of your children.

Of course, there are occasions when a collaborative approach is not successful, or isn’t suitable (for example, due to a history/threat of domestic violence). In these circumstances, a Court will decide on your behalf. The Judge will make their decision based on a number of factors, with a primary focus on the welfare of the child and what he/she believes to be in the child’s best interests.

Either parent can be the ‘primary care-giver'. This means the parent responsible for the child’s day-to-day care. In some cases, both parents share the care of the children.

In practice, this involves a large amount of communication and flexibility and works best when parents can put their emotions aside.

What about the Family Home?

Again, you are encouraged to work this out through agreement or using the collaborative process. If you cannot agree, an application to the Courts may be necessary.

If you reach an agreement, this needs to be drawn into a Consent Order which is approved by the Court. This Consent Order makes the agreement legally binding and often part of the agreement is that the parties have a clean break in life and death. It’s very important that you do obtain a Consent Order after your agreement as without certain clauses, you’re left open to claims by your ex-partner in the future.

If a Judge must decide on your behalf, his/her decision will be largely influenced by the needs of the parties, which includes the needs of the person caring for the children. This is because the Court will want to limit the disruption to your children’s lives as much as possible. All of the assets of the marriage are considered, including assets held in one party’s sole name. They are then divided based on the reasonable needs of each party.

There are a number of options available such as property transfers, orders for sale and orders that allow one party to stay in a property for a period of time and sold later down the line. The Court will always try to ensure that both parties have an equal drop in their standard of living and the aim is to try and ensure both parties can start fresh.

Will I Lose Everything?

A separation or divorce is often a very hard time. It involves a lot of compromise on both sides and often neither party is completely happy with the outcome.
However, don’t forget that your children have a right to a relationship with both parents. Just because the children do not live with you, it does not mean that you cannot see them.

As for the house, there are ways to ensure your interest in the property is protected. For example, you could get a Court Order stating that your ex-partner and your children can remain in the property until a certain date.

This might be until your children have finished full-time education. After this, the property must be sold and the proceeds divided. Or, it might be possible to release your equity and remove your name from the mortgage. It really depends on the needs of children, and the financial position of both you and your ex-partner.

The law is purposely very flexible and both parties have to provide full and frank financial information to each other and the Court. This allows the parties to consider every option with all of the information available.

Our Divorce Solicitors Can Help You

Following the breakdown of a marriage, deciding what happens to your children and your home is no easy task. Emotions are running high, and you may be frightened about losing everything that’s most valuable to you.

We understand this, and we want to help you. Our Divorce Solicitors can advise what your rights and responsibilities are, both as a parent and as a homeowner. We can then help you reach a mutually agreeable decision, whether through negotiating with your ex-partner or by guiding you through mediation and drafting your Consent Order. If this doesn’t prove to be successful, we can represent you throughout Court proceedings.

For initial advice call our Family Law & Divorce Solicitors

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