Divorce and the Family Home

Divorce and the Family Home: Comprehensive Guidance

Deciding what happens to the family home is often one of the most emotionally and financially challenging aspects of divorce or separation. At Hewetts Solicitors, we recognise that housing is not only a practical necessity but also one of the most significant assets in most relationships.

This guide provides in-depth advice on your rights, potential risks, key legal steps, and how to protect your position.

Legal Rights to Occupation and Ownership

Married couples:
Even if only one spouse is listed as the legal owner or tenant, the family home is usually treated as a matrimonial asset. During divorce proceedings, the court can order the transfer or sale of the property, or require one party to make a financial payment to the other.
Rights of occupation are protected by statute under the Matrimonial Homes Act 1983, meaning one spouse cannot evict the other without a court order.

Cohabiting couples:
Partners who are not married do not have automatic rights to the family home unless a specific agreement exists (either express or implied). However, if you have contributed towards the mortgage, maintenance, or improvements, you may have a proprietary or equitable interest in the property. These situations often depend on evidence and may require careful negotiation.

Occupation Orders, Safety, and Urgent Situations

Where separation involves safety concerns or urgent housing issues, Occupation Orders under the Family Law Act may provide protection.
Such orders can allow one spouse to remain in the home (even if not the legal owner or tenant), or require the other to move out temporarily.
These are urgent court orders with a high threshold—applicants must demonstrate risk of harm or lack of suitable alternative accommodation.
Hewetts Solicitors can assist clients in applying for these swiftly where necessary.

Financial Settlement and Timing

• The family home’s treatment in a financial settlement depends on overall resources, children’s housing needs, each party’s earning capacity, and their financial and non-financial contributions.
• Deciding whether to retain or sell the property requires consideration of mortgage liabilities, maintenance, and potential capital gains tax.
• Where one spouse requires exclusive use of the home during proceedings, interim arrangements can often be negotiated—such as temporary exclusive occupation or alternative housing orders.

Interaction with Renting and Tenancy Law Changes

Following recent reforms under the Renters’ Rights Bill, tenants in periodic tenancies enjoy increased security.
This interacts with family law protections—particularly during separation—by preventing rushed evictions or loss of housing.
If one spouse or partner is a tenant, they may have greater protection throughout the divorce or separation process.

Practical Steps for Clients

1. Gather key documents: Deeds, tenancy agreements, mortgage statements, records of maintenance or improvements, and financial statements.
2. Consider mediation or collaborative law: Reaching agreement on who remains in the property, whether to sell, and interim occupation can save significant time, cost, and stress.
3. Seek urgent legal orders where needed: Particularly if there are concerns around domestic abuse, child welfare, or immediate housing needs.
4. Plan for tax and costs: Be aware of potential capital gains tax, moving costs, or mortgage early repayment penalties.
5. Review your legal housing security: Being named on a deed or tenancy does not automatically grant full control—ensure you understand your rights before making decisions.

At Hewetts Solicitors, our Family Law team helps clients in the Reading area and beyond to navigate these difficult decisions. We provide strategic, practical advice, representation in court where needed, and work to preserve your dignity, security and rights through this transition.

 For further advice please contact Safeena Tufail at s.tufail@hewetts.co.uk or 0118 9575337

Published on 05/11/2025