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Who gets the house in a divorce?

Posted on 29th November 2021 in Family Law

Posted by

Aimee Aspinall

Associate and Chartered Legal Executive
Who gets the house in a divorce?

Separation is never easy, but if you and your former partner own property together, the situation can be even more complicated. The family home is likely to be the biggest asset within the marriage. Both parties have a right of occupation, even if the property is owned in one party’s sole name. Negotiations will need to take place to determine what will happen to the property.

 

Selling the family home

Following a sale of the family home, the proceeds will need to be divided between you. This does not necessarily mean that there will be a 50/50 split. If a decision cannot be reached as to the split of the proceeds then it is likely that they property lawyers will hold the funds in their account until there is either an agreement or sealed court order. In the event the home is sold both parties will need to find new accommodation. If there are children then their needs will need to be re-housed will take priority.

 

A “buy-out”

If there is insufficient equity in the property to re-house both parties then they will need to look at options of mortgages or rental. Much will also depend upon whether either party can obtain a mortgage and, if so, whether it would be enough to buy the other party’s share from them. There may also be an issue if your mortgage company is unwilling to release one party from their mortgage obligations. It is essential to check the willingness of the current mortgage provider to release a party at an early stage.

 

A “Mesher” Order

This means that the parent caring for the children can continue to reside in the home until an event takes place to trigger the sale of the property. These trigger events are usually:

  • The youngest child reaching the age of 18 or finishing full time secondary education
  • The spouse in the home remarrying
  • The spouse in the home cohabiting with a new partner

Consideration would need to be given as to who would pay the mortgage and other payments if only one spouse is getting the benefit of the property. After the trigger event occurs the property would be sold and the sale proceeds divided between you as mentioned above.

 

Matrimonial Home Rights

The family home is a matrimonial asset and therefore even if the property is owned solely by one spouse, it is still taken into consideration with jointly owned assets. Where it is the case that one spouse owns the property, it is advisable for the non-owning spouse to safeguard their interest in the property during financial negotiations by registering a Home Rights Notice at the Land Registry. This simply means that the owner cannot sell the property, transfer ownership to someone else, or remortgage while financial negotiations are taking place. The owner will be notified by the Land Registry that a Home Rights Notice has been registered.

 

Cohabitation

If you have been living with a partner, but you are not married, the legal term is ‘cohabitation’. When cohabitees separate, they are not afforded the same protections in law as married couples who are getting divorced. This can be difficult, as, for many cohabiting couples, there is little difference in practical terms.

 

Moving out of a cohabitation home

If you own your home and you are named on the title deeds, you have the right to stay in the property. However, if you are both named on the title deeds, you will need to decide between you who will remain in your home, or if you wish to sell it. It is also worth noting that if both parties are named on the mortgage, you are both responsible for continuing to make mortgage payments, even when one party moves out.

If one partner wants to stay in the property, they may be able to buy their partner’s share in the property. You should seek advice from an experienced mortgage broker if you wish to do this as lenders will require evidence that you can afford the mortgage on your own. You will then need the assistance of a solicitor to transfer ownership.

 

Selling a cohabitation home

If you and your partner decide to sell your home, the process is reasonably straightforward. You can sell the property and divide the profits after paying off any existing mortgage.

 

When children are involved

If you have children under the age of 18, it is possible to ask the court to delay selling the property until your youngest child turns 18.

 

What if you cannot agree on what happens to your cohabitation home?

If you and your former partner are unable to come to an agreement about what is to happen to your home, you may wish to enter mediation to help you come to an agreement. If mediation is unsuccessful, you can ask the courts to decide what will happen to the property. Typically, the court will divide the property's value between the two of you based on the shares you are entitled to.

 

Find out more

For further help or support on separation, please contact our Family Law team, or for any more advice on settling assets, please contact our dispute resolution team.

To read more insights on Family Law, divorce and separation, please visit our Good Divorce Week page.

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