GUIDE • DIVORCE FINANCE SOLICITORS
The Family Home
For most couples, the family home is both their most valuable asset and the place where their children feel most settled. Decisions about who stays, who leaves and what ultimately happens to the property are often the most significant, and the most emotional, in any separation. This guide explains your rights to occupy the home, how to protect your position, and the options available when a marriage ends.
Written by Nicola Jones - Partner, Divorce and Family - Last reviewed 13th October 2026
KEY POINTS
- Both spouses usually have the right to live in the family home until the finances are resolved, whoever owns it.
- If the home is in your spouse's sole name, you can register a home rights notice free of charge to protect your position.
- Moving out does not mean giving up your share, but it can have practical consequences.
- On divorce, the home may be sold, transferred to one spouse, or retained until a later date.
- Unmarried couples are treated very differently, and their rights depend largely on ownership.
Who has the right to live in the family home?
If the home is jointly owned, both spouses have the right to live there. If it is owned by one spouse alone, the other still has "home rights" under section 30 of the Family Law Act 1996. These give a non-owning spouse the right not to be evicted or excluded from the home without the court's permission. Only the court can require either spouse to leave, through an occupation order, and it will generally do so only where there is a real risk of harm.
How can I protect my position if the home is in my spouse's sole name?
Home rights are not fully protected against buyers or lenders unless they are registered. If the home is in your spouse's sole name, you can register a home rights notice at HM Land Registry using form HR1. There is no fee, and your spouse's consent is not needed, although the Land Registry will notify them. Once registered, the notice makes it very difficult for the property to be sold or remortgaged without your knowledge.
Home rights usually end when the final order is made, which is one reason it is generally sensible to resolve the finances before the divorce is finalised.
Should I move out of the family home?
Not without taking advice first. Leaving does not mean giving up your share of the home, but it can affect arrangements for your children, and it may be difficult to return once you have left. If you continue to contribute to the mortgage, you will also need to cover the cost of somewhere else to live. If you feel unsafe, however, your safety comes first, and the court can make protective orders, including an occupation order or a non-molestation order.
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What happens to the family home in a divorce?
There are several possible outcomes, either agreed between you or decided by the court:
- Sale: The home is sold and the proceeds divided, allowing each of you to rehouse.
- Buy-out: One spouse buys out the other's share, usually by remortgaging.
- Transfer: The home is transferred to one spouse, often balanced by the other keeping more of the savings or pensions.
- Deferred sale: The sale is postponed, typically until the youngest child finishes education (a Mesher order), or until the occupying spouse remarries, cohabits or dies (a Martin order).
What does the court consider when deciding?
The court applies the factors in section 25 of the Matrimonial Causes Act 1973, giving first consideration to the welfare of any children. Housing needs are central, particularly for the parent with whom the children mainly live. The court will also consider both parties' incomes and borrowing capacity, the other assets available, and the contributions each has made. Whose name is on the deeds is not decisive.
What if we are not married?
Cohabiting couples do not have home rights, and the court cannot divide property based on need as it does on divorce. Instead, disputes are decided under property and trust law, principally the Trusts of Land and Appointment of Trustees Act 1996. The starting point is legal ownership, although a partner not named on the title may be able to show a beneficial interest, for example through an agreement or financial contributions. Claims may also be possible for the benefit of children.
Common questions
Usually not, because the divorce itself is dealt with on paper and most financial and children matters are settled without a contested hearing. Mediation, collaborative law, arbitration and solicitor negotiation can all help you reach an agreement without going to court.
You can apply for the conditional order after a minimum of 20 weeks, and then for the final order six weeks and a day after that, so around seven months at the earliest. It often takes longer, especially if you wait for finances to be agreed before applying for the final order.
IN THIS GUIDE
Who has the right to live in the family home?
How can I protect my position if the home is in my spouse's sole name?
Should I move out of the family home?
What happens to the family home in a divorce?
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How we work
An experienced family solicitor will run your matter from the first meeting onwards, and you will deal with them directly rather than being passed between members of a team.
Part of their job is to help you decide where your time and money are best spent. In most divorces there are points worth pressing and points that make little difference to the end result, and we will be straightforward with you about which is which.
A lot of matters are resolved through negotiation or mediation, and where that is realistic we will recommend it. Where it is not, because the other side will not engage, or disclosure is incomplete, or the issues are genuinely contested, we will advise you on taking the matter to court and act for you there.
Rushton Family Law is the sister brand of Vardags. If your case involves complex finances or international issues, we will introduce you to the Vardags team.
