Divorce and the family home

What happens to the family home when you get divorced?

For many families, the marital home is the most valuable asset. As the centre of family life, it is often the most emotionally significant one, too. When a couple separates, what happens to the family home is an important consideration, that affects the future of everyone involved.

Whether you want to remain living in the family home, buy out your former partner, or sell up entirely, getting advice from an experienced divorce solicitor can help you work out your options.

Worried about what happens to your house?

Often divorce brings a lot of uncertainty, and where you and your family will live post-separation is a key concern. You may be worried you can’t stay in the family home, or that your partner may try to force a sale. If communications have become difficult or broken down completely, you may also be concerned about who will pay the mortgage whilst all the other aspects of your divorce are being worked out.

What happens to your house in the divorce?

If both partners lived in the house together, it is usually considered to be a part of the marital pot, regardless of who owns it on paper. Whilst the basis of any asset division in divorce is fairness, this doesn’t mean the split is automatically 50/50. There are many factors that affect how the house is treated by the court, such as:

•  Each partner’s current income and future earning capacity
•  Each partner’s ability to get a mortgage on a new property
•  Each partner’s contributions to the marriage (whether financial or non-financial)
•  What other assets each partner has access to
•  The length of the marriage
•  The needs of any children

The court will always aim to ensure that any children are suitably housed as a first priority – this can mean remaining in the family home with one of their parents.

What can happen to the house – what are your options?

There are several ways the family home can be dealt with in a divorce. Which option is best for you, largely depends on your circumstances and what resources are available to you and your former partner. Here are some of the options available to you:

Sell the home and divide the money

This is a common situation if neither partner can afford to keep their home by themselves.

Defer the sale of the home until a later date

This allows one partner to remain in the home to ensure their housing needs, or the housing needs of any children are adequately met.

There are two types:

Mesher Orders – these allow the primary caregiver of the children to remain in the home until a particular date, or event, such as the children reaching a certain age or go off to university, for example. These are often seen as a last resort

Martin Orders – these apply when the couple either have no children, or have only adult children. Martin orders allow the less wealthy partner to remain in the family home, because they can’t afford to house themselves otherwise. These orders are only typically made when the other partner does not need access to the money tied up in the house and already has the resources to rehouse themselves.

Transfer of ownership

You may be able to stay in the family home by acquiring your partner’s share. There are a couple of ways this can be achieved:

1 – you buy out your former partner’s share of the home, using cash or by taking over the existing mortgage in your own right, or obtaining a new mortgage by yourself.

2 - by offsetting your partners share in exchange for receiving a larger share of any savings or investments you had together.

What happens if we can’t agree on what happens to the house?

If you and your partner are not able can’t to agree on what will happen to your home, you may need to progress your matter to Court.

If both partners lived in the house together, it is usually considered to be a part of the marital pot, regardless of who owns it on paper. Whilst the basis of any asset division in divorce is fairness, this doesn’t mean the split is automatically 50/50. There are many factors that affect how the house is treated by the court, such as:

•  Each partner’s current income and future earning capacity
•  Each partner’s ability to get a mortgage on a new property
•  Each partner’s contributions to the marriage (whether financial or non-financial)
•  What other assets each partner has access to
•  The length of the marriage
•  The needs of any children

The court will always aim to ensure that any children are suitably housed as a first priority – this can mean remaining in the family home with one of their parents.

What happens to the house in a divorce with children?

During divorce, maintaining a secure home environment for children is a key priority, both in solicitor-led negotiations and formal court proceedings.

It does not automatically mean that one of the parents will keep the house, although this can happen.

What happens to your home is dependent on many factors, including:

•  The ages of your children, and what needs they have
•  Where the children will mainly live
•  Each parent’s income and their housing options
•  Whether any mortgage is affordable
•  The value of the property
•  The value of any other assets held

The primary aim with any arrangement is to achieve fairness for everyone involved, and ensure that all of the family’s needs are met.

Every family’s situation is different. When children are involved, it is especially important to take legal advice before making any decisions which can affect your future, such as moving out of the family home, or agreeing to sell it.

Our dedicated financial remedy solicitors can give advice tailored to your needs and circumstances and help you move forward with confidence.