Around 15% of the population are neurodivergent and have additional needs.

In family law cases there has been a positive change in recent months which has allowed those with neurodiversity to have an equal access to justice in family law matters and overcome barriers which may prevent fair justice taking place.

On 30th January 2025, the Family Justice Council published Guidance on Neurodiversity in the Family Justice System for Practitioners.

What is neurodiversity

Neurodivergence is the term used for when someone’s brain processes, learns, and/or behaves differently from what is considered ‘neurotypical’. ‘Neurotypical’ refers to a person with neurological development and functioning that are of a typical standard according to social norms.

Understanding Neurodiversity has had a considerable effect on society by shifting the way we value the differences in how people think, learn, and interact with the world. It challenges traditional norms by promoting the idea that neurological differences, such as autism, ADHD, and dyslexia, are natural variations rather than deficits that need to be ‘fixed’ or ‘cured’.

Neurodiversity effects the way that some people are able to present information, engage and process information. These people are classified as ‘neurodivergent’.

It is no surprise that a divorce is typically considered one of the most stressful experiences, alongside moving house and loss of a loved one. This is often because it involves a combination of all of those – grieving for a relationship/future that is not as you intended or hoped, and the immediate thought of where you are going to live and whether this will involve moving home.

Where you have children, this makes it even more important to strive to provide a solution that provides them, and you, with stability. Often where there are young children the house can become a symbol of security at a time of great uncertainty and as a result establishing who gets the house in a divorce or whether it should be sold is a crucial decision.

There are no hard and fast rules as to whether a house would be retained or sold, whether immediately or deferred for a few years. It will all depend on your own particular circumstances and consideration of affordability and needs.

If I have children that means the home has to be kept until the youngest is 18?

Not necessarily. As above there are no set rules that determine what happens to the family home during a divorce. The family home is one of the assets that needs to be considered.

The law in England and Wales confirms that the first consideration must be the welfare of any minor children of the family under the age of 18. In general the law strives to ensure that any settlement will result in the children having a secure home with as a minimal impact to their quality of life as possible – but that does not always mean remaining in the family home.

Section 25 of the Matrimonial Causes Act 1973 contains the factors that the law says should be taken into account when considering a fair division of finances, as above, with the first consideration being the welfare of any children under 18. One of those factors and often the most magnetic of those is that of financial needs, obligations and responsibilities.

Minor children are clearly a responsibility and they must be taken into account when considering housing needs. If the children are spending considerable time with both parents – even if this is more time with one than the other – the law is wary of a settlement which would result in one parent remaining in good quality accommodation and the other in small or unsuitable accommodation and the solution that should ensure the children have a good home with both parents.

If, after consideration of your particular circumstances, it is possible for the family home to be retained and the financial assets to be divided in a fair way such that the other parent can also provide a home for the children (of similar if not the same quality – and not necessarily in purchased accommodation at least immediately) than it is likely a Court would favour that as an outcome. However sometimes this does not work – either it means that the other parent would not be able to meet their housing need or if there is simply insufficient money for the family home to be retained i.e. it cannot be afforded. In some cases a solution could be for the family home to be retained, typically by the parent with whom the children spend more time, and the other person having to wait for their share of the capital if this is the only way to ensure the children’s housing needs can be met but this would need careful exploration and how to fairly deal with the other parent who has to wait for their capital. Questions such as can they be released from the mortgage immediately? How does their share get protected? Who pays the bills/mortgage in the meantime? Are there potential tax consequences etc all need to be considered.

The law will consider all of the circumstances of the case, children being one of the factors they take into account but often the reality is that there is insufficient money to make two homes out of one and difficult decisions have to be made and what is fair for one couple may not be fair for another and therefore legal advice is crucial.

FAQs

1. Does having children mean the family home must be kept until the youngest is 18?

Not necessarily. The court’s first consideration is the welfare of any children under 18, but that does not automatically mean the family home will be kept until they reach adulthood. The outcome depends on your overall circumstances, including affordability, housing options for both parents and what best meets the children’s needs.

2. What does the court look at when deciding who gets the house in a divorce with children?

The court applies the factors in section 25 of the Matrimonial Causes Act 1973, giving first consideration to the welfare of any minor children. It will look at issues such as each party’s financial resources, housing needs, obligations and responsibilities, the standard of living during the marriage, ages and health, and the contributions each has made to the family.

3. Can the family home be kept in one parent’s name after divorce?

Yes, in some cases the family home can be transferred to one parent, often the one with whom the children spend most of their time, provided the other parent’s housing needs and overall fairness can still be met. This may involve that parent paying the other a lump sum or agreeing that the other retains an interest in the property, recorded in a court-approved order.

4. What is a deferred sale (Mesher-type) order and when is it used?

A deferred sale order allows the parent with primary care of the children to remain in the family home until certain trigger events occur, often the youngest child turning 18 or finishing full-time secondary education. The property is then sold and the proceeds divided in an agreed way, but this type of order has pros and cons and is usually considered a solution of last resort or where both parents agree it is best for the children.

5. What happens if there is not enough money to buy two homes?

Where there is insufficient equity or income to fund two suitable homes, difficult choices sometimes have to be made and a sale of the family home may be unavoidable. The court will still aim to secure appropriate housing for the children with each parent as far as possible, which may include one or both parents renting rather than buying.

6. Can we agree what happens to the house without going to court?

Yes. Many couples reach an agreement about the family home through negotiation, mediation or other non‑court dispute resolution, then ask the court to approve it as a Consent Order. This can be quicker, more cost‑effective and less stressful than a contested court process, while still giving you a binding and enforceable agreement about the property.

7. Do I need a solicitor to decide who gets the house when we have children?

Given the complexity of the law and the long‑term impact of housing decisions, specialist family law advice is strongly recommended. A family lawyer can explain your options, assess likely outcomes in your circumstances and help you reach an arrangement, or obtain a court order, that protects your position and prioritises your children’s housing needs.

As family solicitors, we know all too well the stresses travelling abroad with your children when you are divorced can bring.

School holidays can be a stressful time for parents – juggling additional childcare responsibilities with work; changes to the daily routine with children being home and trying to find activities that fill their time but don’t cost the earth.

Where parents are separated this can be made even more difficult trying to ensure each has quality time with the children. The need for cooperation, planning and good communication will be ever more important.

Emotions and financial realities also often come into play with one parent not being able to afford to take the children abroad when the other can; the resentment of having to fit around the other parent’s work/holiday restrictions or children from another relationship; feelings of loss from the past family holidays when together; the guilt or anger in saying no and being blamed for denying the children opportunities etc. All of these factors, and more, can lead to a boiling point of conflict which ultimately only results in the children being caught in the middle.

Do you need the other parents permission?

Most parents won’t have Court Orders to regulate the arrangements and the key to reducing tension and disagreement is to plan ahead with good communication. A schedule that works well for the family during term time is likely to need revision and agreement during holiday periods to enable the children to have holiday time with each parent. If there is going to be a disagreement the sooner you know the sooner you can resolve it for the benefit of the children.

If you are hoping to travel abroad with the children, there are additional considerations. Many parents are unaware that to travel abroad with their children you need the consent of anyone else who has Parental responsibility (typically this is the other parent). If you do not have that permission then you could find yourself facing criminal charges for child abduction. If there is a “Lives with” Order in place that confirms the children live with you then technically you do not require the other parent’s consent to travel abroad for a period of up to 28 days however – you must ensure this does not impact upon the time the children spend with the other parent if there is a Court Order as otherwise, you would be in breach of that Order.

Don’t make the mistake of just going ahead and booking a holiday abroad without consultation with the other parent and making promises to the children about arrangements without having a clear, and agreed, plan as to how the holidays will work in reality.

It is normally advised that even if you believe you can travel without permission (either due to a “lives with Order” or if there are no Orders in place and the other parent does not have parental responsibility) you should still communicate your plans for travel to the other parent so they know where their children will be. By doing this, and remaining respectful and considerate of the other parent, it can work wonders to prevent undermining of successful post-separation parenting by unilateral decision making.

Be prepared and plan in advance

Timing is crucial. Don’t leave these issues until a week before a planned trip – take time to ensure both of you feel heard in any dispute and can work towards an agreed resolution. Conflict arises most often when the other parent feels backed into a corner over arrangements they have no control over and this could result in expensive Court or Arbitration applications which should be avoided as far as possible and only used in circumstances of genuine disagreement, exceptional cases and as a measure of last resort.

What can you do if you can’t reach a direct agreement?

If you’re unable to agree on the arrangements in direct discussions/communication then you should consider whether mediation is appropriate. Mediation provides an opportunity to explore all issues in a non-confrontational manner with assistance from an independent and impartial mediator who helps you to discuss the issues between you and reach a bespoke agreement that suits your individual family needs. Mediation can be a great success and the advantage is that you, as parents, retain full control over the arrangements for your family. It also has the advantage of being a flexible and cheaper alternative to Arbitration or Court litigation where the procedures can be consuming and costly- both emotionally and financially.

If mediation is not suitable then other alternatives would be to try a more collaborative approach – either formally using a collaborative law process whereby all discussions take place around the table with specially trained advisors or negotiation through solicitors either by round table meetings, correspondence or otherwise.

A further shift to non-court dispute resolution

As family solicitors, we know all too well that the costs of litigating disputes through the Court, both emotionally and financially, can be vast and, on occasion, disproportionate.

The reality is that there are some cases where issuing Court proceedings is, and will remain, the best solution, particularly where there is extensive domestic abuse, or where you have a reluctant person who may currently be burying their head.

However, at Purcell Solicitors we have long been advocates of non-Court methods of resolving family disputes if possible, such as mediation, collaborative law, lawyer-led negotiation, private evaluations and arbitration to name a few. Indeed, Pauline was one of the first solicitor arbitrators, Pauline, Mandi and Lisa are trained collaborative lawyers, Lisa is a fully accredited mediator and all of our solicitors are members of Resolution striving to minimise acrimony for you in an often very difficult time.

Upcoming Family Law Changes

Sadly, Court has remained, for too many people, the first or indeed only option and it can be hard to understand why an alternative process (which may on the face of it occasionally appear to have more expense although often isn’t in reality given the time typically saved in achieving a resolution) should be considered when there are already proceedings before the Court.

Thankfully the tide appears to finally be turning as there is now to be a much greater emphasis, for those considering or indeed already within Court proceedings, on considering other processes to resolve their disputes.

Family Procedure Rules

From April 2024, the Family Procedure Rules are changing, marking a further shift towards the encouragement of the use of “non-court dispute resolution” the definition of which has been expanded to ensure a greater emphasis on consideration of all options.

Whilst specialist family lawyers are well versed in advising people as to these alternatives, the changes to the FPR mark a shift towards those who may not be so well versed and the Court’s own role with a stronger encouragement on the use of these processes to try and reduce the number of separating couples who find themselves going through the Court process, and with real risks and consequences to those who fail to consider alternatives and simply say “see you in court” without good reason.

Your well-being is our priority, particularly during the most difficult moments.

It is perhaps no surprise that, alongside moving house, the death of a loved one, major illness or loss of a job, divorce is one of the biggest life stressors. A divorce is a decision that carries huge practical and financial implications, as well as the emotional turmoil of coming to terms with a future that is not going to be, whether your choice or not, what you had planned.

The legal and practical aspects can be complex, all-consuming, and confusing, and you are often asked to make big decisions about your future at a time when you are navigating your emotions and the emotions of others impacted by the ending of the relationship.

It’s Essential to Allow Time for Your Feelings to Settle.

As with any major and life-altering event, it is essential, where possible, to allow time for your feelings to settle; decisions made at the height of high emotions can be tricky, and it may be beneficial to seek support from others. Fear of the unknown is common and can be paralysing, but there are reassuring ways to navigate the process and make the best decisions for your family.

We sometimes hear people feel they have no time or it is somewhat indulgent to look after their emotional well-being. Particularly when you are amid practical and sometimes urgent decisions whilst supporting others in the family, such as children who you will be trying to protect from any negative impact. However, in our experience, prioritising your own mental and physical well-being and health can often mean you are more confident in your decisions and stronger in supporting others, akin to the aeroplane message of “put your own mask on before others”.

Successful well-being methods vary depending on the individual. Some people will benefit from professional counselling or divorce coaches, some from mindfulness or meditation, and others reconnect with friends or personal hobbies. However you care for your well-being, the significance of it cannot be overstated.

When considering how to divide your financial arrangements the first step is to ensure that you both have equal knowledge of the financial circumstances of your marriage.

What is financial disclosure?

Financial disclosure is where you and your former partner exchange full information about your respective financial circumstances- both individually and jointly so that you can make financial arrangements for your future. In most circumstances, a Form E is utilised which is a Court form designed to assist you in providing full information about your circumstances – including assets, income and information about your current and future needs and circumstances.

What assets need to be disclosed?

In short, everything. Both parties must be honest when disclosing their financial circumstances and provide full supporting documentation, as this can cause delays and potentially serious issues later with adverse consequences for those found to have been misleading. When disclosing your financial circumstances these include but are not limited to:

Family Mediation Week is taking place this year between the 22nd and 26th of January 2024. This is an annual initiative for the mediation community to come together to help raise the profile of family mediation and the benefits this can offer to couples who are experiencing or have experienced family breakdown and have issues that need to be resolved.

The new year typically sees a rise in the number of parents deciding to live apart as the various pressures that go hand-in-hand with the Christmas period can act as the final straw, or as a result of delaying action or a decision until the festive period has passed.

Family Mediation Week is designed to raise awareness of the benefits of family mediation, a process that can help ex-partners agree on what works for them, whilst avoiding an adversarial process such as Court with all the stress, delay and cost it can bring.

When faced with separation often find people in this position simply don’t know which way to turn. The decision to separate brings with it so many tough questions: