Dividing Property in a Divorce
When it comes to getting a divorce, the matrimonial home is usually one of the first assets that are discussed by the divorcing parties.
How are we going to fairly divide the property we own? Well, there are many ways this can be done, but if you cannot agree to this between you it may be necessary to seek professional help.
The rights you have to the property will depend on a range of factors, but typically the matrimonial home will form part of the overall financial settlement. This doesn’t necessarily mean that it will be divided 50/50.
Our experts have put together this short and simple guide to property and divorce to help answer all of the burning questions you have.
How Is A House Divided In A Divorce
There are several options for sharing the equity in a marital home between the divorcing parties, just as there are with sharing money and assets.
Figuring out the best solution to how is a house divided in a divorce will depend on the specific circumstances and will generally require negotiation between the couple – possibly even mediation.
Some of the ways in which property can be divided in a divorce include:
- Selling up – one of the best ways of achieving a ‘clean break’ (ie so there are no lasting obligations for either spouse in terms of maintenance payments etc) will be to put the property on the market and divide any profit from the sale. Any cash from the sale can be put towards new individual mortgages, so this is a useful option if the divorcing parties do not have money for a new deposit.
- Buying the full share of equity – in the case of a joint mortgage, if either party has the financial resources to pay the full mortgage, they can purchase their former spouse’s share of the equity. This also provides for a clean break but will normally mean the buyer staying in the marital home or renting it out.
- Maintenance – if one divorcing party is in a stronger financial position, they may agree to move out and leave the marital home to their ex-spouse, whilst continuing to pay their share of the mortgage (or even the full mortgage). This arrangement may form part of the overall maintenance agreement, especially if there are children still living at home.
- Transferring the property – if a home is jointly owned and the mortgage has been paid off, one spouse may agree to transfer the property to their ex as part of the overall financial settlement.
Court orders: what are my options?
A divorcing couple will need a consent order drawn up by a solicitor to provide legal standing to any financial settlement which involves dividing up a marital home.
If the couple cannot agree on how to split the property, the court can make a Property Adjustment Order. This order sets out how the matrimonial home should be dealt with following the divorce.
Court orders can include:
- Transfer of property – the court might require full ownership of the matrimonial home to be transferred to one spouse. This may involve transferring a mortgage across.
- Sale of property – a court can decide that the best solution is to put the property up for sale and divide the proceeds between the divorcing parties.
- Mesher order – this provides for the postponement of the sale of the family home, allowing one of the divorcing parties to remain living in the property for a certain period of time or until a ‘trigger event’. For example, a Mesher order can allow a former spouse to remain living in the property with the children until the children finish full-time education or reach the age of 18.
- Martin order – this provides for an indefinite postponement of the sale of the property. The former spouse who is granted residency in the home under a Martin order will often be able to carry on living there for the rest of their lives, subject to certain ‘trigger events’ such as re-marriage or if they voluntarily vacate the property.
A family court can impose a Property Adjustment Order as part of the overall financial order.
However, this will normally be as a result of a failure to agree on how to deal with the property between themselves or via mediation.
The court can choose how to divide up the property, irrespective of whose name is on the title deeds, whether or not there is a joint mortgage, or even if one party owned the property in full prior to the marriage.
If a couple is able to decide how to divide up the property, they will still need to get a consent order which contains details of their agreement regarding the property.
For example, if they have agreed to sell up, this will be stated in the consent order.
How to split the house without going to court
The court will generally need to be involved in some capacity when deciding how to divide up marital property.
This may simply be a matter of issuing a consent order to provide legal standing to any agreement reached.
It is possible to split the home without a consent order, however, this will open up the possibility of either party later on changing their minds and breaking the agreement.
The court would have no powers to enforce the agreement you’ve reached if a consent order isn’t obtained, which could mean one party not holding up their end of the agreement.
We have a joint mortgage – who decides who gets what?
Deciding on how to split property with a joint mortgage will generally be down to negotiation between the divorcing parties. If they cannot agree between themselves, it will be necessary to consider mediation before taking the matter to court and asking a judge to decide.
While negotiations are ongoing, regular repayments for the joint mortgage must carry on as normal.
Any failure to keep up with repayments can end up damaging the credit ratings of both spouses and even lead to property repossession in extreme cases. It is generally a good idea to inform the mortgage company of the divorce as soon as possible.
What are my rights to property that is jointly owned?
If a property is jointly owned (whether or not this entails a joint mortgage), both spouses will retain their individual rights that come with legal property ownership.
In practice, this means that divorcing parties will both have the right to carry on living in the property while they are deciding how to divide it between themselves.
There is therefore no need to rely on the ‘home rights’ in this scenario.
What happens if the house is in my ex’s name only?
If one spouse owns the marital home in its entirety (ie only their name is on the deed) they will generally still need to share the equity with their former spouse as part of the divorce settlement.
Although they might be able to retain the property by relinquishing other assets (eg pension rights), it will still initially form part of the overall marital pot.
What are the rules on living together when separated
Until a financial settlement has been agreed upon, both divorcing parties have ‘home rights’ in a marital home, irrespective of who owns the property.
Home rights provide each spouse with the right to carry on living in the property whilst the divorce is in progress and before it has been finalised with a decree absolute.
Obtaining a divorce while living together can be more complicated than when living separately, however, it is still certainly possible.
Can an ex-partner force the sale of the house?
Neither divorcing party can demand the sale of a house without the permission of their spouse who is still living in the property.
They need to wait until a financial settlement has been agreed upon.
Similarly, if the property is jointly owned, one joint owner cannot sell up if the other joint owner refuses. If there is a deadlock, it may be necessary to go to court.
Can an ex-partner change the locks?
Unless there is a court order in place restricting access or occupation by either divorcing party, their spouse cannot lock them out or refuse them entry before a financial settlement has been agreed upon.
Locks should generally not be changed unless it has been decided that one party has sole rights of occupancy.