Who Gets The House In Divorce
The largest asset in most marriages is the family home.
So 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.
How can the house be divided in a divorce?
Separating couples will often put a lot of effort into negotiating how to deal with their former shared matrimonial home, and this may involve mediation. There are many different options for dividing the property, including:
- Selling up – the divorcing couple can put the house on the market and divide up the proceeds. This is often the most straightforward option and can provide for a clean break. Any money from the sale can be used for both parties to put down a deposit on new properties.
- Buying out – another common method of dealing with a shared property is for one former 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 – if there is no mortgage on the property, one ex spouse could simply leave the house to their former partner as part of a financial settlement, possibly as part of pension offsetting.
If the divorcing couple fail to reach an agreement with a consent order, the court may need to impose a financial order.
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. For more information on home rights, see our Matrimonial Home Rights Application Service.
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?
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 make a decision on how to divide up a matrimonial home – 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 of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage; and
- the age of each party to the marriage and the duration of the marriage.
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 Tenancies in Common to you.
For example if there are Title Deeds pertaining to the property it may have both names on the property stating that it 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 it will be divided equally.The court may have to consider the Beneficial Interest in the property this maybe a 60/40 split or 70/30.
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.
If you do not want your share to go automatically to your spouse then you should consider asking a solicitor to “sever” the Joint Tenancy. This can be done by serving a written notice on your partner that the Joint Tenancy is severed. Both parties will then hold the property as”Tenants in Common” which means It is still in joint shares, 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.
Upon divorce you may decide to sell and split the proceeds, transfer your share to your spouse or even or buy out their share.You could also decide that you do not want to sell the property until certain triggers have been reached such as until the youngest child reaches 18 or finishes full-time education.
You also may need help from your spouse to pay the mortgage which the court can order if they deem this necessary. 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 have to stick to the agreement as it is then legally binding.
As the former matrimonial home is one of the largest assets most couples own it is good if you can sit down and come to a mutual agreement and decide how to separate your home.
What happens with joint mortgages?
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 future.
What happens if the family home is owned by just one spouse?
If your marital home is only in one spouses 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.
Who Gets The House FAQ’s
Do I lose the house if I move out?
No, you still have short-term home rights even if you move out. This entitles you to return home even if you temporarily moved out whilst you arranged a permanent solution.
If you move out and are unable to come to an agreement in regards to the property you are able to ask the courts to decide for you. However, this will cost money and time so it’s recommended that if you are able to come to an agreement yourselves, you do.
What happens with mortgage payments during the divorce if one spouse has moved out?
If both your names are on the mortgage then you are legally obligated to pay it regardless of your situation. However, you must inform your mortgage provider of your change in circumstances, they may even be able to help in some situations.
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