Can I Stay in the House? How the Family Court Decides (Plain-English Guide)

Amy Dixon
Aug 19
5 min read

When a relationship ends, one of the first questions is: who stays in the home and on what terms? Below is a clear, practical guide to how the family court actually decides this—plus the options you can agree in mediation so you keep control of the outcome.

The two big questions the court asks

What are your legal rights to occupy?
- Owner? Joint owner? Tenant?
- Spouse/civil partner with “home rights”?
- Cohabiting partner with no legal title?
What outcome is fair and safe right now?
- Are there children needing stability?
- Do either of you need protection (domestic abuse/safeguarding)?
- What are the housing options and finances on both sides?

The court can make short-term occupation decisions to keep people safe, and longer-term property decisions about sale/transfer as part of a financial remedy.

Short-term: who lives in the home now?

1) Occupation Orders (Family Law Act 1996)

Used where safety, harassment or exclusion is an issue. The court can:

Let one party stay and exclude the other (even if both own the home).
Define zones/times of use, require handover of keys, and set non-molestation terms in tandem.
Consider the “balance of harm” test: if you or a child are likely to suffer significant harm without the order, the court should make it unless the respondent would suffer equal or greater harm.

When deciding, the judge considers: housing needs/resources, financial resources, conduct, and the effect on health, safety and wellbeing of each party and any child.

''If abuse is recent or ongoing, an occupation order can be made urgently (sometimes without notice) and later reviewed''.

2) “Home rights” for spouses/civil partners

If you’re married or in a civil partnership but your name isn’t on the title, you still have a statutory right to occupy the matrimonial home until the marriage is legally ended or the court decides otherwise.

Protect this by registering a Home Rights Notice (HR1) at HM Land Registry.
It doesn’t give ownership, but it prevents sale or re-mortgage without your knowledge and supports an application to remain in the property pending the financial settlement.

Longer-term: what happens to the property in the financial settlement?

A) Married / civil partners – Matrimonial Causes Act 1973

On divorce/dissolution, the court can:

Transfer the home to one party (with or without a charge-back for the other).
Make a deferred sale order:
- Mesher order – sale delayed until a trigger (e.g., youngest child finishes secondary education).
Order a sale now and divide proceeds.
Make maintenance orders (including towards the mortgage) and tidy up who pays what until sale or transfer completes.

What guides the decision?

The section 25 checklist: children’s welfare first, housing needs and resources, incomes, earning capacity, ages/health, contributions, standard of living, and overall fairness.

B) Unmarried couples (cohabitees) – TOLATA 1996 & Children Act 1989

If you’re not married:

The court looks at ownership and trust law (TOLATA). It can decide who owns what share, make declarations of trust, order sale, or regulate occupation between co-owners (including “occupation rent” if one excludes the other).
Where children need a home, a parent can ask under Schedule 1 Children Act for housing provision (often a property provided until the child’s majority, then it reverts).

C) Tenants

With rented homes, the court can transfer a tenancy between partners in certain circumstances, or you can agree an assignment with the landlord’s consent. If safety is the issue, an occupation order can name the tenant permitted to remain.

What about the mortgage and bills?

The lender isn’t bound by your separation; if you’re both on the mortgage, you’re both liable until sale/transfer.
The family court can make temporary orders (who pays what) and factor payments into the final settlement.
If one party remains in sole occupation, the other may seek occupation rent (mainly in TOLATA cases) or an adjustment in the final figures.
Falling into arrears risks credit damage and repossession—agree a holding plan early, inform the lender, and consider switching to interest-only or a payment holiday if eligible.

How children’s needs influence “who stays”

Judges prioritise stability for children: proximity to school and support networks, space for them to live comfortably in both homes, and the cost/availability of alternatives.

In many cases, the home is retained temporarily with the primary carer while finances are re-organised (e.g., a Mesher order).
That said, the court balances both adults’ needs—a home that neither can afford long-term is unlikely to be kept indefinitely.

Evidence that helps (and what to bring to mediation or court)

Title or tenancy documents, mortgage statements, home rights registration (if applicable).
Budgets for each household and realistic local housing options (sale/rent figures, deposits).
If abuse is relevant: police logs, medical notes, messages, witness statements, and a risk summary.
For cohabitees: any declarations of trust, equity contributions, and works/improvements evidence.

How mediation can sort this faster (and cheaper)

The court can decide who stays, but you don’t have to leave it to a judge. In mediation you can build a plan that works in practice:

Interim living plan: who stays now, access/shuttle arrangements, and ground rules.
Money plan: split of mortgage/bills short-term; how to prevent arrears.
Valuation & disclosure: agree the valuer, gather statements (we use the Open Financial Statement).
Long-term outcome: transfer with charge-back, deferred sale (Mesher/Martin triggers), or sale now with a staged move.
Parenting plan alongside the housing plan so the two fit together.

''If needed, you can take the mediated agreement to solicitors for independent legal advice and convert it into a Consent Order so it’s binding''.

Quick answers to common scenarios

“I’m married but not on the deeds—can I be forced out?”Not usually without a court order. Register home rights and seek advice. Safety concerns? Consider an occupation order.

“We’re cohabiting, only my ex is on the title—do I have any right to stay?”You may, but it depends on trust/ownership arguments (TOLATA) or a Schedule 1 application if you’re housing children. Get early advice and use mediation to find an interim plan.

“Can the court make my ex keep paying the mortgage if I stay?”The court can make maintenance or interim arrangements (and will account for mortgage payments in the final award), but the lender will still expect payments from whoever is named on the mortgage.

“Will the court always keep the children in the current home?”No. Children’s welfare is key, but the home still has to be affordable and sensible. Sometimes stability is achieved by two modest homes rather than one unaffordable one.

Next steps

Book a same-week MIAM to talk through your options, safety, and timescales.
Bring your title/tenancy details, mortgage statement, and a basic budget.
If there are safety concerns, tell us—shuttle mediation (separate rooms or online breakout) is available, and we can discuss legal protections.

We can help

At Family Mediation Online, we offer:

Same-week MIAM appointments
Shuttle mediation where appropriate
Clear financial disclosure tools and a structured pathway to a Consent Order

Ready to get started? Book your MIAM now at family-mediation-online.co.uk or request a call-back.