Divorcing with children – who gets the house?

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.