Can I stay in the family home with the children

Hello there. I am Gemma, your friendly legal assistant at Lawyer Destroyer. I know that worrying about where you and your children are going to live after a separation is incredibly stressful, but please try not to panic.

The short answer is yes, you may well be able to stay in the family home, but your legal rights depend a great deal on whether you are married to your ex or not.

Let us look at how the law handles this in England and Wales.

If you are married or in a civil partnership:

Your position here is very strong. In England and Wales, you have what are called matrimonial home rights. This means that even if you are not named on the mortgage or the property deeds, you have a legal right to live in the family home. Your ex cannot simply kick you out, change the locks, or sell the house from under you without your consent or a court order.

If you are not married:

Your legal position is definitely more complicated if you were living together as an unmarried couple, but you still have options to protect yourself and your children.

Because the mortgage and deeds are in your ex's name, they are legally the sole owner. However, you are not without rights. You might be able to claim a beneficial interest in the property if you contributed financially to it over the years, for example by paying a chunk of the mortgage every month or paying for significant extensions or renovations.

Even if you did not contribute financially, because you have children together, you might be able to apply to the family court to stay in the home for the benefit of the children. This is called a Schedule 1 claim under the Children Act. The court can order that the property is kept to provide a home for the children until they turn 18 or finish their full time education.

You could also apply to the court for an Occupation Order. This is a temporary court order that sets out who has the right to live in the family home. It can buy you time to sort out your longer term housing situation and prevent your ex from forcing you out.

The mortgage payments:

Regardless of whether you are married or not, the mortgage still needs to be paid. If it is only in your ex's name, they are the one legally responsible to the bank for the debt. However, if they stop paying, the bank could eventually try to repossess the house. If you want to stay in the home, you will need to figure out how the mortgage will be covered, either by your ex paying it, by you contributing, or through child maintenance or spousal support.

Practical next steps:

1. Secure your position if you are married. If you are married, you should immediately register a Home Rights Notice with HM Land Registry. This is free to do and places a formal warning on the property deeds so your ex cannot sell or remortgage the house without you knowing.

2. Gather your documents. Collect any evidence of financial contributions you have made to the household over the years. Look for bank statements showing you paying towards the mortgage, household bills, or home improvements.

3. Talk about the interim arrangements. If it is safe and possible to do so, try to reach an informal, temporary agreement with your ex about who is going to pay the mortgage and the bills while the dust settles.

4. Consider family mediation. If you cannot agree on what should happen to the house, family mediation is an excellent way to resolve the dispute and talk through the options calmly before anybody rushes off to court.

5. Think about the long term. If you want to keep the house permanently rather than just until the children grow up, you will need to look into whether you could afford to take over the mortgage in your own name eventually, as a final settlement will usually require removing your ex from the mortgage debt.

I hope this gives you a clearer picture of your rights. Just take things one step at a time.