What Happens to the Family Home on Divorce? Your Most Common Questions Answered

For many couples, the family home is their biggest financial asset. It is also often the place where children have grown up and where years of memories have been made.

So, when a marriage comes to an end, it is completely understandable that one of the first questions people ask is:

What happens to the house when we divorce?

There is no automatic rule that the family home must be sold, nor is there a rule that it will be divided 50/50. What happens will depend on your individual circumstances and the overall financial settlement.

Below, we answer some of the questions we are most commonly asked about the family home on divorce.

Who Gets the House in a Divorce?

There is no automatic answer.

When deciding how matrimonial assets should be divided, the court considers several factors under section 25 of the Matrimonial Causes Act 1973. These include:

• the income and earning capacity of each person;
• the property and other financial resources available;
• each person's financial needs and responsibilities;
• the standard of living enjoyed during the marriage;
• the ages of the parties and the length of the marriage;
• any physical or mental disability;
• contributions made to the welfare of the family; and
• in limited circumstances, conduct.

The welfare and housing needs of any children of the family will also be particularly important.

This means that the question is not necessarily "Who owns the house?" or "Who paid the most towards it?" Instead, the court will look at the overall financial circumstances and consider how both parties' needs can be met fairly.

Does the Family Home Have to Be Sold?

No.

Selling the family home is one possible outcome, but it is certainly not the only one.

Depending on your circumstances, you may agree that:

• the property is sold and the equity divided;
• one person remains in the property and buys out the other's interest;
• the property is transferred to one person as part of the overall financial settlement; or
• the sale of the property is postponed until a later date.

The right solution will depend upon matters such as affordability, mortgage capacity, the amount of equity available and the housing needs of both parties and any children.

Can I Keep the Family Home After Divorce?

Potentially, yes.

If you want to remain in the family home, consider whether this is financially realistic.

For example, you may need to establish whether you can:

• afford the mortgage and household expenses yourself;
• raise enough money to buy out your former spouse's interest; and
• obtain the mortgage lender's agreement to transfer the mortgage into your sole name.

Sometimes, other matrimonial assets can be divided differently to enable one person to retain the house. For example, one spouse may retain a greater share of the equity while the other retains a greater proportion of another asset.

However, every case is different, and the overall settlement must still be fair.

What if We Have Children?

Children's housing needs can significantly affect what happens to the family home.

The court's first consideration in financial remedy proceedings is the welfare of any child under 18.

That does not automatically mean that the parent with whom the children spend more time will receive the house.

However, the court will consider where the children will live and how both parents can provide suitable accommodation.

In some cases, this may mean that one parent needs to remain in the family home, at least temporarily.

What Is a Mesher Order?

A Mesher Order allows the sale of the family home to be postponed until a particular event occurs.

For example, the property might remain occupied by one parent and the children until:

• the youngest child reaches a particular age;
• the youngest child finishes full-time education;
• the person living in the property remarries; or
• another specified event occurs.

Once the triggering event takes place, the property is usually sold and the proceeds divided in accordance with the order.

Mesher Orders can provide stability for children, but they are not suitable in every case. They also mean that the parties remain financially connected through the property for longer, which can create practical difficulties.

What if the House Is Only in My Spouse's Name?

The fact that the family home is registered in only one spouse's name does not necessarily mean that the other spouse has no claim to it.

The family home can still form part of the matrimonial assets considered when reaching a financial settlement.

If you are married and your spouse solely owns the property, you may also be able to protect your right to occupy the property by registering Home Rights with HM Land Registry while the marriage continues.

If you are concerned about your spouse selling, transferring or otherwise dealing with the family home, it is important to obtain legal advice promptly.

I Paid the Deposit – Does That Mean I Get More of the House?

Not necessarily.

People are often surprised to learn that divorce law does not simply involve calculating who paid what into each asset.

The court looks at the overall circumstances of the marriage and aims to achieve a fair outcome.

Where there are sufficient assets to meet everyone's needs, the source of particular funds may become more relevant. This can be particularly important where one person brought substantial assets into the marriage or received an inheritance.

However, where the available assets are required to meet the parties' housing and other needs, those needs can outweigh arguments about where the money originally came from.

Can My Ex Force Me to Sell the House?

If you cannot agree what should happen to the family home, either party can ask the court to determine the financial arrangements as part of financial remedy proceedings.

The court has wide powers when dealing with matrimonial finances, including the ability to order the sale or transfer of property.

This does not mean your former spouse can decide what happens to the property on their own. If you cannot reach an agreement, the court can ultimately decide what outcome is fair.

Can I Force My Ex to Leave the Family Home?

Being separated does not automatically give one spouse the right to remove the other from the family home.

Who has the right to occupy the property depends on the ownership of the property and the circumstances of the case.

Where there are serious concerns about remaining in the same property, particularly where there are allegations of domestic abuse or a risk of harm, it may be possible to apply for an Occupation Order regulating who can live in or enter the home.

If you feel unsafe in the family home, you should obtain legal advice as soon as possible.

What Happens to the Mortgage When We Divorce?

Divorce itself does not remove anyone from a mortgage.

If you have a joint mortgage, you will generally both remain responsible to the mortgage lender until the mortgage is redeemed or the lender agrees to release one of you.

This is important because an agreement between you and your former spouse does not automatically change your obligations to the lender.

If one person intends to keep the property, they will usually need to demonstrate that they can afford the mortgage in their sole name and obtain the lender's approval.

It is therefore sensible to investigate mortgage capacity relatively early in financial negotiations.

What if Neither of Us Can Afford to Keep the House?

If neither person can realistically afford to retain the property, selling it may be the most practical option.

The equity can then be used towards rehousing both parties.

This can understandably be difficult, particularly where children are settled in the property. However, the court has to consider the resources that are actually available and cannot create additional money where there simply is not enough to maintain two households at the same standard as during the marriage.

Can We Agree Between Ourselves What Happens to the House?

Yes – and many couples do.

You may be able to reach an agreement directly, through solicitors or with the assistance of mediation.

However, reaching an agreement is only part of the process.

If you agree how the family home and other finances should be dealt with, it is usually important to incorporate that agreement into a Financial Consent Order and have the court approve it.

Without a financial order, financial claims arising from the marriage may potentially remain open even after the divorce itself has been finalised.

Should I Move Out Before the Finances Are Agreed?

This is something you should think carefully about.

Moving out does not automatically mean that you lose your financial interest in the property. However, leaving the family home can have practical consequences, including the cost of maintaining two households and arrangements concerning the children.

Before making a significant decision about leaving the property, it can therefore be sensible to obtain advice about your position.

Do We Have to Split the Equity 50/50?

Not necessarily.

An equal division can be a useful starting point in some cases, but there is no rule that the equity in the family home must always be divided equally.

The eventual division will depend upon the overall financial circumstances, including the parties' respective needs, incomes, mortgage capacities, pensions and other assets.

For example, one person may require a larger proportion of the available capital to secure appropriate housing.

The important point is that the family home should not usually be considered in isolation. It forms part of the overall financial settlement on divorce.

What Should I Do About the Family Home When Separating?

Before agreeing to sell, transfer or otherwise deal with the family home, it is important to understand the wider financial picture.

This will usually involve considering:

• the current value of the property;
• the outstanding mortgage;
• the equity available;
• both parties' mortgage capacities;
• alternative housing costs;
• savings, investments and pensions;
• income and expenditure; and
• the needs of any children.

A proposal that initially appears fair can look very different once the full financial circumstances are taken into account.

Need Advice About the Family Home and Divorce?

Deciding what happens to the family home can be one of the most difficult parts of separating.

There is no one-size-fits-all answer. Whether the house should be sold, transferred to one person or retained for a period of time will depend upon your family's circumstances and the resources available.

At Harrington Family Law, we can advise you on your options and help you work towards a financial settlement that gives you clarity about your home, finances and future.

If you are separating or going through a divorce and would like advice about what may happen to your family home, contact our family law team to arrange an appointment.