When spouses separate, the question of who remains in the family home usually has to be answered before anything else, and it is answered in two stages: for the duration of the proceedings, and after the divorce.
During the proceedings
Either spouse can ask the court for a provisional measure granting them exclusive use of the family home while the divorce proceedings run. These applications are dealt with quickly, and the decision applies until the divorce takes effect.
The court weighs the interests of both spouses. What tends to be decisive is where the children will live, whether either spouse has somewhere else to go, the financial ability of each to house themselves elsewhere, and whether one spouse’s work or care responsibilities are tied to the house. Ownership matters less than people expect: a spouse who owns the house alone can be required to leave it if the interests of the other and of the children outweigh his.
The measure concerns use, not ownership. It does not decide who ultimately gets the house, and it does not alter who is liable on the mortgage.
After the divorce
Once the divorce has been registered, the spouse who was living in the home has a statutory right to continue using it for a period of six months, on the application of that spouse, even where the home belongs to the other. It is a transitional right, designed to give time to arrange something else, and it does not affect the eventual division.
Who ends up with the house
That depends on the property regime and, decisively, on the mortgage. Where one spouse wants to take over the home, the lender must be willing to release the other from joint and several liability and to accept the remaining spouse alone. If the lender refuses, no agreement between the spouses and no order of the court can compel it, and the practical answer is usually sale and division of the proceeds – or of the residual debt, which is the harder conversation.
Where the property is worth less than the mortgage, the remaining debt is divided in the same way as the rest of the estate, and that liability outlives the marriage.
Rented homes
Where the family home is rented, the court can determine which spouse becomes the sole tenant from the date the divorce is registered, regardless of who signed the lease. The landlord is not a party to the divorce but is bound by that decision.
Practical points
Moving out has consequences beyond the practical. It affects the assessment of provisional use, it can affect where the children are held to be living, and it can affect maintenance calculations. Where you are considering leaving, take advice about the sequence first; where safety is at stake, leave and take advice immediately afterwards.
Keep paying the mortgage or the rent in the meantime if you are liable for it. Arrears accumulate against both names and damage the position of whoever eventually stays.
Advice
We apply for provisional measures, negotiate arrangements about the home, and advise on what is realistically achievable given the lender’s position. Please contact Law & More.
