Deciding what will happen to the family home is one of the most emotive and contentious issues couples are likely to be faced with when they are going through a divorce. In many instances, the family home is the one thing neither party is willing to compromise on, which can make coming to an agreement especially tricky.
While it was traditionally seen that women would want to keep the family home and men would instead look to preserve their pension, this is not necessarily always applicable in this day and age.
A key point to understand is that both parties are likely to have an equal right to claim the property. Even if it is in someone’s sole name, the family home will be considered part of the matrimonial assets to be divided between both parties.
There is no ‘one-size-fits-all’ approach when it comes to deciding what happens to the family home following divorce or separation, which is why carefully tailored legal advice is absolutely essential.
At Sharp Family Law, our expert team of divorce lawyers appreciate how important it is to come to a sensible agreement regarding the family home. We can work alongside you to help to reach a practical agreement that is in the best interests of your family, taking on board exactly what you want to achieve and tailoring our advice and support to match this.
Our team always prioritise collaborative discussions centred around achieving a resolution outside of court, carefully assessing our client’s situation and needs objectively, which helps to remove the stress and cost that often comes with litigation.
Here, we discuss the details regarding what happens to the family home during divorce and provide answers to some of the most commonly asked questions we receive from our clients.
Your legal rights to the family home during divorce
No matter whether you rent or own your home, or whose names are on the deeds, both you and your former spouse will have equal right to live in the family home. This is also true if the mortgage for a property is in someone’s sole name.
Of course, this presents an issue if you and your ex both want to live in the family home but are unable to come to an agreement.
There are usually two outcomes in relation to the family home. Either the property will be transferred into one person’s sole name so they can continue living there, or the property will be sold, and the equity is split following a period of negotiations.
If the court is tasked with making a decision regarding what will happen to the family home, the final decision will usually centre around how much the home is mortgaged for, how much equity there is in the property and the respective needs of both parties and any children.
Selling your family home after divorce
If you and your former partner decide to sell the family home after divorce, then it is important to understand what you may be entitled to receive. While the starting point for negotiations will usually be a 50/50 split, if your divorce is decided via litigation, the courts will look to divide the property in a way that reflects the personal financial situations of everyone involved, as well as the proposed practical arrangements.
Our family lawyers are often asked whether it is possible to force the sale of a jointly owned property if their former partner is unwilling to do so. If this is your intention, then an application can be made to the court to obtain an order for sale, who will assess the situation and either grant or refuse the sale.
Staying in the family home after divorce
Selling the home is not always going to be the desired approach for every divorcing couple. We appreciate that the family home holds a special place in our clients’ hearts, which makes selling it an incredibly difficult prospect.
It is possible to stay in the family home after divorce but, if both parties feel the same way, then this decision will have to be carefully negotiated. As we touched on earlier, both parties always have an equal right to claim the property, which means that an agreement will have to be reached, either voluntarily following collaborative discussions, or through court litigation.
The family home can be transferred into one person’s name following these negotiations, but it is not necessarily straightforward. In our experience, there are a number of important questions that will need to be answered before a final decision is made.
This will include whether a person who wishes to stay in the home has sufficient earning capacity to cover the mortgage by themselves and whether they are able to obtain a mortgage to buy out the other person’s equity.
Ultimately, if the court is called to make a decision on who a house is transferred to, it will look at what is affordable and what is going to be in the best interests of the family, especially if children are involved.
Dealing with the family home during divorce if you have children
The welfare of children is always the main priority during divorce proceedings. It is important to note that, just because you have primary care of your children, it does not automatically mean that you will be entitled to remain in your house.
Every situation is unique, which means that if you cannot agree who gets the family home, the courts will give priority to your children’s needs and welfare in relation to their living arrangements. This may mean ordering them to live with the resident parent in the family home, or it may mean the opposite. The decision will be entirely context dependent.
In some cases, separating couples find it beneficial to defer the sale of the property until a specific event happens, perhaps when the children finish their education. This is called a Mesher Order. The advantage of this is that the children have the stability of getting to stay in their home, but the divorce and related financial settlements are not delayed as a result.
A deferred sale may also be recommended by the courts if the person who the children will be living with is unable to afford another property.
Martin Orders are similar to Mesher Orders, only they apply to divorcing couples who have no children.
Paying the mortgage after divorce
In our experience, the mortgage on the family home can often be one of the most contentious and confusing parts of a divorce.
For clarification, if you are going through divorce proceedings, you need to continue paying the mortgage, even if you have moved out of the family home. If this is a joint mortgage, then both you and your former partner are equally liable for the debt until the mortgage is paid off.
If you want to remove yourself from a joint mortgage, you will need to sit down with your former partner and request that they buy you out or take over the joint mortgage.
If your former partner is not paying the existing mortgage, then you may need to consider selling the house and repaying the current mortgage, getting a court order to have your partner removed from the title deeds, or remortgaging to a new deal.
Need help deciding what happens to your family home during divorce?
At Sharp Family Law, we have a dedicated team of family law experts, who have a wide range of expertise with regards to making arrangements for the family home following divorce.
We are dedicated to helping you and your family find amicable agreements which reduce the need for harmful and costly court proceedings and allow you to preserve important family relationships, especially where there are children involved.
For pragmatic, constructive and sensible advice on any aspect of divorce law, please contact your local team in Bath or Bristol.