Family home

Gap #590

The assumption

If I move out of the family home, I lose my say in the children's lives, or an arrangement has to be formally agreed before I go.

The reality

Parental responsibility does not end because a parent moves out (see gaps 55 and 57). Without a child arrangements order, nothing automatically fixes where the children live or how time is shared once one parent leaves. Arrangements can be agreed informally, but an informal agreement is not binding (see gap 561). If the matter does reach court, the welfare checklist in section 1(3) of the Children Act 1989 includes the likely effect on the child of any change in circumstances. The pattern the children become used to, including time with each parent after the move, can form part of that picture. Money is separate. Child maintenance and any financial order are not decided by who moved out (see gap 519).

Gap #586

The assumption

Only the person whose name is on the deeds or the mortgage has any right to live in the family home.

The reality

Under section 30 of the Family Law Act 1996, a spouse or civil partner who is not on the title has home rights. If they are living in the home, they have a right not to be evicted or excluded by the other spouse unless the court makes an order under section 33. If they are not living there, they can enter and occupy only with the court's permission. Home rights last only while the marriage lasts, unless the court orders otherwise, so the timing of the final divorce order matters (see gap 82). A spouse who is on the title can also apply to the court for an occupation order under section 33. Occupation applications are separate from the divorce and from the financial case. Unmarried partners are dealt with under different sections (see gap 259).

Gap #584

The assumption

If I move out of the family home, I have to carry on paying the council tax and the household bills.

The reality

The answer depends on the type of bill. Council tax follows who lives in the property. Where a joint owner or joint tenant moves out and another resident stays, the remaining resident is solely liable from the date the other person moved out. If nobody is resident, the owner is liable. Gas, electricity and water follow the account. An account in your name, or in joint names, stays your responsibility until it is closed or moved into one name, so the supplier has to be told you have left. Arrears built up while you lived there stay with the account holder. Whether one spouse contributes towards the other's household costs after separation is a different question. That is a matter for agreement, or for the court in financial proceedings. The mortgage is different again: a joint borrower stays liable to the lender after moving out (see gaps 36 and 41).

Gap #551

The assumption

Because one spouse paid the deposit and the mortgage, the family home belongs to them.

The reality

Who paid the deposit and mortgage is a contribution, but it does not determine ownership in financial remedy proceedings. The family home is a matrimonial asset regardless of who paid for it, and the court divides it according to fairness and needs — not according to who wrote the cheques. Contribution is one factor among many; the needs of any children and both parties come first.