Should You Stay in the Marital Home After Divorce? Emotional, Legal & Financial Considerations

Section 1: The Emotional Question

“Do I want to stay in the marital home?”

1.1 Emotional stability and recovery

Divorce is ranked as one of life’s most stressful events on the Holmes and Rahe Stress Scale, second only to the death of a spouse. But it is a bereavement of sorts. Clients tell me it feels like they’re mourning the loss of a future they’re now never going to have. However you feel about it, I’m sure everyone would agree it brings stress. Adding a house move into the mix (itself rated 28th on the Rahe Scale) can compound the emotional toll.

It’s therefore perfectly understandable if you feel that staying in the marital home will provide a much-needed sense of stability, continuity and control. Research from BMC Public Health (2020) found that stable housing plays a critical role in reducing stress and fostering mental health. It provides a psychological anchor, which during divorce, may enable you to focus on processing the emotional challenges without the added strain of adjusting to a new living environment.

If you have children, the importance of maintaining stability feels even more pertinent. The marital home is familiar, routines are established, located in an established community, near friends and schooling and this may help preserve a sense of normalcy and stability for your kids during a time of significant change.

1.2 The case for leaving

While staying in the marital home after divorce offers emotional stability for some, leaving the home can be an equally powerful catalyst for personal growth, autonomy and a fresh start for others. If the marital home is associated with painful emotional baggage, leaving it behind could provide a clean slate to rebuild your life on your own terms.

Creating a new living space may offer you an opportunity to establish independence and redefine self-identity. Longitudinal research by Recksiedler (2019) found that although initial adaption to significant change in the early phases of divorce is emotionally challenging, the individuals who actively engaged in creating new routines and spaces (physical and emotional) reported higher levels of satisfaction and adaptability in the long term.

A study by Korpela et al (2010) found that individuals who actively shape their home environments to reflect personal identity and preferences experience increased emotional comfort and reduced stress levels. This personalisation fosters a sense of control and belonging, contributing positively to mental health. For someone going through divorce, a new environment may assist your emotional recovery, particularly when the marital home has been a source of stress or conflict.

1.3 Key considerations

Deciding whether to stay in or leave the marital home after divorce is deeply personal. While financial and legal factors play a role, understanding your emotional connection to the space is a crucial starting point. Reflecting on the following questions may help you to clarify your priorities and guide you toward a decision that supports your well-being and future goals.

1. Emotional connection and healing

• Does the home feel like a safe space for you to process your emotions?
• Are you staying because it’s familiar, or because it genuinely supports your well-being?
• How would you feel waking up here a year from now – grounded, or still tethered to the past?

2. Safety and security

• Do you feel physically and emotionally safe in this home?
• Are there any lingering feelings of discomfort or tension associated with the space?
• Would moving give you greater peace of mind or freedom?

3. Children’s wellbeing

• Would staying in this home help your children maintain stability and continuity?
• How would leaving affect their emotional health and routines?
• Can you provide an equally safe and nurturing environment elsewhere?

4. Personal growth and independence

• Does staying here allow you to build the life you want moving forward?
• Would leaving provide an opportunity for you to explore new possibilities and redefine yourself?
• How important is it to you to create a fresh, personalised space?

5. Social and community ties

• How connected do you feel to the neighbourhood and community?
• Would leaving mean losing access to important support networks or friendships?
• Would staying here help you maintain these connections?

These are big decisions. If you’re uncertain or need someone to guide you through this emotional journey, consider reaching out to a compassionate divorce coach. They can help you explore your options, clarify your goals, and navigate this significant life transition with greater confidence and support.

Section 2: The Legal Question

“Can I stay in the family home?”

Divorce can bring many uncertainties, especially when it comes to the family home. Understanding the legal principles that govern property division is crucial in determining whether you can stay in the marital home. Here’s a breakdown of the key legal considerations, but if you are left in any doubt then please seek legal advice. This can be a complex legal area awash with equally complex emotions.

2.1 Legal ownership and entitlement

The legal structure of property ownership has a direct impact on whether you can stay in the marital home. If you and your ex-partner own the home as Joint Tenants (which is the most common set-up for a married couple with a mortgage) you have equal ownership rights. Neither party can exclude the other from the property, and any sale would require mutual agreement unless ordered by the court. 50/50 is the starting point for any negotiation, although that does not necessarily mean that you’ll both get an equal share of any profits in a final settlement. It is simply part of the pot of assets to be divided and discussed, which will also include bank balances, investments, savings and pensions.

Tenants in Common in equal shares is similar to Joint Tenants. Tenants in unequal shares means the proportion of the property you own is pre-set, e.g. a 20%: 80% split. This commonly reflects one party having put more money into the property when it was purchased. The proportion of ownership can influence how the property is divided during the divorce. But again, the house forms just one aspect of the pot of assets to be divided and discussed, which will also include bank balances, investments, savings and pensions.

If the house is solely in your ex-partner’s name you may still have a right to occupy the property under the Matrimonial Causes Act 1973 if it was the marital home. You can register your Matrimonial Home Rights with the Land Registry. That will protect your interest in the matrimonial home until the divorce is concluded. By that time, what happens to the property will have been decided as part of the negotiations.

2.2 Divorce agreements and consent orders

A consent order is a crucial legal document that formalises agreements about dividing assets, including the family home, ensuring they are legally binding. Without a consent order, informal agreements can lead to future disputes, leaving either party vulnerable to retrospective asset claims later.

In Radmacher v Granatino (2010), the significance of legally formalising agreements was underscored when disputes over asset division arose despite prior informal arrangements. A consent order not only safeguards your interests but also provides clarity and enforceability.

Once an agreement is reached between a solicitor drafts the order and submits it to the court for consideration. If it is deemed fair then the Judge will approve the order, without the need for an actual court hearing.

2.3 The role of children

When children are involved, the court’s priority is their welfare, as mandated by the Children Act 1989. This often influences decisions about who remains in the family home. The parent with primary caregiving responsibilities is typically favoured, as this arrangement minimises disruption to the child’s routine, schooling, and social connections.

Key factors considered include the home’s proximity to schools, access to friends and support networks, and the stability of the living environment. Courts aim to ensure continuity in the child’s daily life, recognising its importance in their emotional adjustment. For example, in cases involving young children, judges often allow them to remain in the family home to reduce the upheaval associated with divorce. This decision prioritises their best interests above other considerations.

2.4 Mortgage considerations

Even if a consent order or court grants one party the right to stay in the marital home, the mortgage remains a critical issue. Lender approval is required to remove one party from a joint mortgage or transfer it entirely. Without this, both parties remain liable for repayments, regardless of who resides in the home.

Lenders will evaluate the income, creditworthiness, and overall financial stability of the party wishing to take over the mortgage. If these criteria are not met, refinancing or selling the property may be the only viable options. Affordability concerns often lead to the sale of the marital home to resolve liabilities equitably and avoid financial strain.

2.5 Mesher Orders and deferred sale agreements

A Mesher Order or a deferred sale agreement can provide a temporary solution when dividing the family home during divorce. These arrangements allow one party—usually the primary caregiver—to remain in the home with the children until a specified event occurs. Common triggering events include the youngest child reaching 18, completing full-time education, or the remarriage of the resident parent.

How are Mesher Orders issued?

These orders are not imposed automatically by the court. Either party must apply for one as part of the financial settlement process. The court will consider the welfare of any children, the financial resources of both parties, and whether such an order is a fair resolution. Judges are more likely to grant a Mesher order if it aligns with the children’s best interests, as outlined in the Children Act 1989.

Pros of Mesher Orders and deferred sale agreements

1. Stability for Children:
   • The arrangement ensures that children remain in their familiar home during critical developmental years, reducing the upheaval caused by parental separation.
2. Delays Financial Pressure:
   • Both parties avoid the immediate need to sell the property, which can provide breathing room to manage other financial adjustments related to the divorce.

Cons of Mesher Orders and Deferred Sale Agreements

1. Tied financial interests:
   • Both parties remain financially tied to the property until the deferred sale occurs, which can complicate future financial planning and independence.
2. Disputes over maintenance and equity:
   • The party living in the home may be responsible for maintenance costs, while the other party may have concerns about their share of equity diminishing if property values change.

Section 3: The Financial Question

Is It in my financial interests to stay?

The financial costs of staying in the marital home, or moving to a new home, or even renting, unlike the Psychological issues raised, are quantifiable. But financial issues around divorce are often highly complex and very emotive.

It’s important not to make assumptions and to weigh short term interests with long term financial needs. Professional help can be vital to ensure that you don’t make a mistake during such an unsettling time that you’ll come to regret later in life. The value of cash flow planning cannot be overstated. Without it, it’s very difficult to achieve enough precision to enable you to make sufficiently informed financial decisions.

3.1 Can you afford to stay? Affordability

Staying in the marital home can be financially demanding, especially when transitioning to a single-income household. Key costs include mortgage payments, maintenance, utilities, and Council tax. Additionally, hidden expenses like repairs or renovations can add up, impacting long-term affordability. Interestingly, the research suggesting that there can be positive psychological benefits of staying in the marital home ALSO found that this positive impact is undermined if staying results in financial strain and a lack of affordability (BMC Public Health (2020).

Lenders are obligated to ensure that the individual assuming sole responsibility for the mortgage can afford the repayments independently. This involves a thorough affordability assessment, which includes:

• Income evaluation: Verification of your income sources, such as employment earnings, self-employment income, or other regular income streams.
• Expenditure review: Analysis of your monthly outgoings, including existing debts, living expenses, and any financial commitments.
• Creditworthiness check: Assessment of your credit history to determine your reliability in repaying debts.

With a keen eye for detail and an excel spreadsheet it is possible to do this yourself. But if you feel you would benefit from some help then we can recommend some highly experienced mortgage experts who will be able to work out the costs associated with staying on and pre-empt your lenders affordability assessment.

3.2 Sacrificing a share of your ex’s pension for the marital home

As it stands around 60% of divorcing couples do not include pensions in their financial settlements. People frequently assume that since the pension was accumulated from ‘their job’ it remains theirs. But that is not how the law views it. Divorce courts aim to ensure the long-term needs of both parties are secured so they will take into account the full spectrum of assets, including both parties’ pension pots.

Sometimes the psychological imperative to stay in the marital home can be so compelling that even when people know they are theoretically entitled, they knowingly forego a portion of their ex-partner’s pension in favour of keeping the marital home. Pensions can be among the most valuable assets in a marriage, sometimes exceeding the value of the family home. Overlooking them during divorce proceedings can lead to significant long term financial disadvantages, particularly for women, who often have smaller pension pots due to career breaks for childcare.

This is a highly complex legal and financial area. Expert assistance is not only prudent but often insisted upon by the court. Pension on Divorce Experts (PODEs) are specialist pension experts who crunch the numbers to establish the precise value of pensions, then work out how those pensions should be shared or split to establish long-term parity.

The PODE report enables you to factor the pensions into the bigger financial picture as part of the financial settlement, but it won’t give you a definitive understanding of whether staying in the marital home as opposed to selling and claiming a portion of your ex-partner’s pension or other financial assets is in your best long term interest.

To achieve that you should engage a financial planner who can build a cash flow model which can be used to project the long-term differences of different proposed financial settlements or options. This allows you to compare scenarios—staying, selling, pension sharing—and see their financial impact over time. Without this analysis, you’re making decisions based on guesswork, which can lead to financial strain in the future.

3.3 Alternatives to staying

Selling the home and splitting the proceeds can offer greater flexibility, providing funds to:

• Downsize to a smaller, more manageable property.
• Rent temporarily, allowing for assessment of appropriate longer term financial options
• Diversify assets into pensions, shares, or other income-generating investments.

Long term renting may work well if you have sufficient assets to see you through retirement, offering flexibility without tying up capital. However, for those with fewer resources, renting will diminish long-term stability and is not the best option to secure financial stability.

A financial planner can compare these alternatives, projecting how each affects your overall financial health. This ensures your choice aligns with your unique circumstances, long term goals and personal ambitions.

3.4 The impact of age and asset mixes

If you are getting divorced at a younger age, it may make sense to keep a significant portion of your wealth in property, as you have time to rebuild assets and benefit from property appreciation. However, diversification is still essential to handle unexpected costs or life changes.

A good rule of thumb asset mix for those forty or under would be:

If you are getting divorced and nearing retirement, then liquidity becomes more critical. A large property asset can limit access to funds for healthcare, travel, or other needs. Selling or downsizing may allow for better financial security through diversified, income-generating investments.

If you are getting divorced and are already retired, then tying up too much capital in property may restrict flexibility. Renting or downsizing could free up assets for other priorities. Using cash flow modelling, a financial planner can simulate these options to determine how best to meet your lifestyle and financial needs.

A good rule of thumb asset mix for those nearing or in retirement would be:

Modelling your post-divorce asset mix ensures your wealth is not overly reliant on property and remains flexible for emergencies or future goals. This data-driven approach provides clarity and confidence in your financial decisions.

References

Rolfe, S., Garnham, L., Godwin, J., Anderson, I., Seaman, P. and Donaldson, C. (2020) ‘Housing as a social determinant of health and wellbeing: developing an empirically-informed realist theoretical framework’, BMC Public Health, 20(1), p. 1138. Available at: https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-020-09224-0 (Accessed: [insert date]).

Recksiedler, C., Loter, K., Arránz Becker, O., & Perrig-Chiello, P. (2019) ‘Personal Growth After Gray Divorce: A Longitudinal View on the Dissolution of Long-Term Marriages’, Innovation in Aging, 3(Suppl 1), p. S617.

Korpela, K.M., Luoma, M., & Hietanen, H. (2010) ‘Personalizing one’s living environment: Psychological benefits and the role of place attachment’, Journal of Environmental Psychology, 30(2), pp. 123-132.