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Who Gets The House In a Divorce?

The largest asset in most marriages is the family home, but who gets the house in a divorce?

Understandably when it comes to getting divorced, it’s perhaps no wonder that deciding how to divide up the equity in a shared property is often the biggest point of contention.

This will sometimes be a case of who gets to remain living in the former matrimonial home and who needs to move out, so emotions can run high.

This article helps explain who gets the house in a divorce. You may also want more information about what happens to the house in a divorce, in which case read: 6 Ways to Separate Property When Getting Divorced.

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    What happens to the house in a divorce?

    When it comes to divorce and property, separating couples will often put a lot of effort into deciding what happens to the house in a divorce, and this may involve mediation.

    There are several different options used for determining who gets the house in a divorce, but the most common are:

    • Selling up The divorcing couple can put the house on the market and divide up the proceeds. Often the most straightforward option and which can provide for a financial clean break. Money from the sale can be used for deposits on new properties by both parties.
    • Buying out Another common method of dealing with a shared property is for one spouse to purchase the remaining equity from their former partner. This also provides a clean break but it is only possible where one party has sufficient financial resources – either to buy the equity themselves or to increase their mortgage.
    • Maintenance If there are young children from the marriage, the mother will sometimes remain in the property, and the father will move out and carry on contributing to the mortgage repayments as part of a maintenance agreement.
    • Settlement When there is no mortgage on the property, one spouse could leave the house to their former partner in a transfer of equity as part of a financial settlement, possibly as part of pension offsetting.

    If the divorcing couple fails to reach a mutual agreement with a consent order, the court may decide on their behalf and impose a financial order on both spouses.

    Who gets the house in a divorce with children?

    The divorce law in England & Wales prioritises the welfare of children.

    When deciding who gets the house in a divorce with children the safety of children always comes first, along with minimising any disruption caused by the divorce.

    Often this means that the main parental carer and children remain in the family home (see ‘Maintenance’ option above).

    But it is important to mention that this option is only possible if it is financially affordable. If the primary caregiver chooses to stay in the family home its essential that they can afford to live there.

    The spouse that has moved out sometimes continues to help with the mortgage through spousal maintenance, but this is not always possible due to them having to pay for an additional place to live of their own.

    Do I have a right to stay in my home during divorce proceedings?

    While the divorce process is still ongoing, spouses have ‘home rights’ in their shared matrimonial home. In effect, even if the property is owned by just the husband or wife, their spouse retains a right to live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.

    However, it is vital that home rights are registered with the Land Registry.

    If the divorcing couple are joint legal owners of the property, the situation is more straightforward: both parties have a right of entry and occupation until a relevant consent or financial order has been approved by the court.

    There are exceptions to this rule in cases of alleged domestic violence etc.

    How does the court decide who to give the house to in a divorce?

    In property law, as with all matters related to divorce, the circumstances of the marriage and both parties will need to be assessed individually before the court can decide on a divorce house split – including whether one of the former spouses can remain living in the property.

    In all cases, there is an overriding principle of fairness, and the initial starting point will be a 50:50 split.

    The primary concern of the court will be to protect the welfare of any children under the age of 18. They will then look at other factors set out by section 25 of the Matrimonial Causes Act 1973 – including:

    • The income, earning capacity, property, and other financial resources which each party has or is likely to have in the foreseeable future
    • Financial needs, obligations, and responsibilities which each of the party has or is likely to have in the foreseeable future
    • The standard of living enjoyed by the family before the breakdown of the marriage
    • The age of each party and the duration of the marriage

    Joint Tenancy and Tenants in Common What is the Difference?

    When you purchased the property your solicitor should have asked you how you wanted to own the property and explain the difference between Joint Tenancy and Tenants in Common.

    Joint Tenancy

    Title Deeds pertaining to the property may have both names on the deeds stating that the property is owned jointly, but your Beneficial Interest in the property might be held in equal or unequal shares.

    If you hold the property jointly this does not automatically mean that on sale the proceeds will be divided equally. The court may have to consider the Beneficial Interest in the property, and this may be a 60/40 split or a 70/30 split.

    Furthermore, if you hold property as joint tenants and your spouse dies their share of the property will automatically pass to you. This will happen even if you’re ex-spouse has left a will expressing a wish for the share to go to someone else.

    Tenants in Common

    If you do not want your share to go automatically to your spouse then you should consider severing the Joint Tenancy. This is done by serving a written notice on your partner that the Joint Tenancy is severed.

    Once the Joint Tenancy is severed both parties will hold the property as “Tenants in Common”, which means It is still in joint shares, or ownership, but if you die your share will go to whomever you want it to pass to and you can make provisions for this in your will.

    Transfer of equity

    As the former matrimonial home is one of the largest assets most couples own it is good if both can come to a mutual agreement and decide how to separate the home rather than have the court decide.

    Upon divorce, you may decide to sell and split the equity of the property (the proceeds of the sale minus any outstanding mortgage), agree a transfer of equity to your spouse or buy out their equity.

    You could also decide that you do not want to sell the property until certain triggers have been reached – such as when the youngest child reaches 18 years of age or finishes full-time education.

    This can be written in a consent order if you are both in agreement as to what is to happen to the home when you divorce. This means both of you must stick to the agreement as it is then legally binding.

    If deciding not to sell the property you may need help from your spouse to pay the mortgage which the court can order if they deem this necessary.

    Joint mortgage separation rights?

    Married couples with joint mortgages are jointly and severally liable for mortgage repayments; this essentially means that if either spouse fails to pay their share their partner can be held liable.

    As such, divorcing couples will often try and move the mortgage into one name as part of the overall financial settlement, to prevent complications arising in the future. For more information read: What Happens to Joint Property In Divorce.

    What happens if the family home is owned by just one spouse?

    If your marital home is only in one spouse’s name it’s essential the other spouse registers home rights with the Land Registry. This means that they register their rights in the property and stops the property from being sold, transferred, or mortgaged without their knowledge.

    it’s important to know that this is only a temporary solution until the financial consent order is in place and a permanent solution has been found. It will also be obsolete after the decree absolute has been issued so you must register before your divorce is finalised.

    What should I do when selling a house because of divorce?

    One of the first things to do when deciding to sell up as a result of a marriage breakdown is to get the property valued by an estate agent or surveyor. This valuation will be extremely important in terms of the overall financial settlement.

    If you have a joint mortgage, inform your mortgage lender about the situation straight away; any failure to meet mortgage payments can damage the credit scores of both parties (eg making new mortgage applications more difficult) and can even lead to the house being repossessed.

    Should you sell your house before or after you have filed for divorce?

    Whether a divorcing couple decides to sell up before or after divorce will depend to some extent upon their respective financial situations.

    If both have their own independent means and savings, there may be less of a rush to sell up – especially if they are happy to carry on living together during divorce proceedings, or if alternative living arrangements can be made.

    But if money is tight, it may be helpful to put the marital home on the market at the earliest opportunity.

    The overall process of separation can be very expensive and having access to proceeds from a house sale may be critical in terms of both parties being able to meet their financial responsibilities.

    On the other hand, if any substantial repairs or alterations are required before the house can be put up for sale, this can lead to disputes as to who is responsible for paying for any work. In this case, it may be better to first reach a divorce settlement that takes this issue into account.

    The property can be sold if both partners agree, but what happens if one party does not want to sell up? Can a co-owner force a sale of a house and under what circumstances can you force a house sale?

    What is a Property Settlement Agreement?

    A property settlement agreement refers to the part of a financial settlement concerning property that needs to be separated between the ex-spouses following divorce.

    Property Settlement Agreement – £399

    This Clean Break Consent Order service provides you with a professionally drafted court order that documents to the court how you intend to split your property and other finances. The same agreement with a high-street firm can cost £2,000 or more with VAT.

    This post was written by Mark Keenan. Editor of Divorce-Online and Managing Director of Online Legal Services Ltd. Mark has been writing about divorce and related subjects for over 20+ years and is an expert in legal marketing.