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Do adult children living at home have rights over the matrimonial home in a divorce?

6th July 2021 by Jonathan Talbot

Categories: What's New?
Tags: adult, children, divorce, family, home, rights

Recent research by Loughborough University shows a sharp rise in the so called ‘boomerang’ generation of young adults returning to live at home until their late twenties or early thirties.  This trend has continued as a result of the pandemic causing job losses, furlough, and university closures and the steep rise in the cost of purchasing a property.

‘With family life changing, we are seeing an increase in queries about whether adult children living at home have any rights in a divorce,’ says Jonathan Talbot, head of the family law team with Laceys. ‘The law makes a number of provisions to ensure minor children continue to be cared and provided for following divorce, but in recent years it has become more apparent that the age at which children are able to leave home has increased.  Unlike a tenant or lodger there are unlikely to be any legal formalities in place, such as a tenancy agreement, to stipulate the rights of a young adult living at home.  This can create uncertainty for all concerned as to what, if any, rights that adult child has.’

This can be a worrying and stressful time for all involved, especially if the family home needs to be sold perhaps as a result of the breakdown of the child’s parents relationship.  The child may feel aggrieved or think that deserve a share in the property, especially if they have contributed financially to the household, or they may seek ongoing financial help from their parents to rehouse themselves.

However, the rights of an adult child are extremely limited.  The law does not impose an ongoing obligation on parents to maintain their adult child, except in certain specific circumstances, nor does the law require parents to continue to provide a home for them.

There are two main pieces of legislation governing an adult’s right to claim from their parents, namely the Matrimonial Causes Act 1973 and the Children Act 1989.

Neither of these pieces of legislation permit a child to obtain a legal interest in the family home on divorce but, under certain circumstances, they do permit an adult child to obtain ongoing maintenance from a parent which may assist with their housing needs.

Matrimonial Causes Act 1973

Under the Matrimonial Causes Act 1973, a child over the age of 16 can apply for maintenance from their parents provided a periodical payments order has already been made in their favour when they were a minor.  This legislation only applies to children of married parents.

A periodical payments order is an order of the court stipulating a level of financial support that is payable to the parent with whom the child resides. Typically, it would be agreed or adjudicate by the court at the time of separation.  If there are no periodical payment orders in place, then an adult child cannot apply for maintenance under this legislation.

If a previous periodical payments order was in place, then an adult child can apply to the court.  If successful, this would enable the child to obtain maintenance from their parent by way of periodical payments or a lump sum.  These orders are rare and tend to be made where the child is continuing in education or undergoing training for a trade or profession.

The court also has power under this Act to provide for maintenance to be payable in special circumstances.  There is no clear definition of special circumstances, but previous cases have usually involved an adult child with a disability.  The court tends to be sympathetic to cases where that disability means there is an ongoing dependency or requirement for expensive medical equipment, treatments, and the engagement of specialist support.

Children Act 1989

The Children Act 1989 provides a possible alternative route, where a child’s parents have not been married.  There must not have been a maintenance order in place while the child was under 16.  If there was then, perhaps bizarrely, in view of the terms of the Matrimonial Causes Act considered above an adult cannot apply now.

It This Act enables an adult child to seek maintenance from their parents if they will be or are in further education or training for a profession or vocation, or, if there are special circumstances to justify making an order.  What constitutes special circumstances will be the same as  under the Matrimonial Causes Act above.

Again, this order can be for periodic payments or a lump sum but it does not provide rights or interests for the adult child in a family home.

What factors do the courts take into account in deciding whether to make an order or not ?

The factors for the court to consider in deciding whether to make an order under either these Acts are very similar.  If you are entitled to apply, then the court will consider the following:

• the income and earning capacity of each parent;
• the financial needs and obligations of each parent;
• the child’s financial needs and their own ability to generate an income now and in the future;
• any physical or mental disability of the child; and
• any education or training the child intends to undertake.

This will necessitate a disclosure by both parents and the adult child of any assets they hold and their incomes.  The court is not limited in the amount it can award, which will be proportionate to the needs of the child.

Can an adult child ever claim an interest in the family home?

It is possible for an adult child to bring a claim over the family home.  This is a civil action in which the adult child claims that, although they are not a legal owner of a property, it is only fair and just because of assurances they were given and their reliance upon those assurances to their detriment that they should have such a share.

This type of situation can arise in a number of ways.  Typically, it involves the situation where there is a family-run farm.  A child may have given up the opportunity of gainful employment to work for a low wage on the farm after an assurance given to them by their parents that the farm would be theirs one day.  They may have made sacrifices in turning down other opportunities to progess with employment elsewhere and even made investments in the farm business on the basis of promises made to them.  In those circumstances then the parents making those promises may be unable to deny that an interest in their property in favour of their child exists.  The circumstances could also arise in other family-run businesses which are tied to the home, such as a hotel or garden centre.

The adult child may also be able to bring a claim if they have invested heavily in the family home upon the assurance it would be theirs.  They may have extensively renovated the house, built an extension or annex, or modernised electrics and heating at substantial cost.

Cases in equity can be costly and difficult to quantify.  It is important that early advice is sought in order to avoid a lengthy legal dispute.

Conclusion

While adult children may have few rights for financial maintenance from their parents, it is no doubt a stressful time for all the family when parents go through a divorce.  Adult children may be burdened with more of their parents worries and feelings if they are not shielded from these in the same way as would be say minor children.

If an adult child has invested in your family home, such that they may have acquired a property interest in it then recognising this at an early stage can save significantly in legal costs.  It is important to discuss these matters early on and ensure that adult children are aware of any potential house sale in order that they can make their own arrangements in good time and obtain legal advice.  After all, maintaining a good relationship with your children will be of paramount importance.

If you would like any further advice on family matters please contact either our Family department on 01202 377800 or j.talbot@laceyssolicitors.co.uk or our Mediation department on 01202 377993 or g.burden@laceyssolicitors.co.uk

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.