Who gets the house in divorce?
Divorces can be very turbulent and emotional for all those involved, particularly concerning what happens to the family home often being one of the most complicated issues to resolve. It is sensible to seek expert advice at an early stage to ensure you are clear on your rights and the different options you should consider.
In most cases, divorcing couples will be able to agree amicably what will happen to the family home. This might be achieved through private negotiation or other alternatives to court proceedings, such as mediation. However, if an agreement cannot be reached, it may be necessary to make an application to the court for a decision.
Ways a house may be divided in a divorce
Some of the most common options for dealing with a house in divorce are:
One person buys out the other
If one person wishes to stay in the family home and they have the financial means to do so, they may be able to “buy out” their former partner (with their agreement), giving them a lump sum in exchange for their share of the house. This change in ownership will need to be put into effect through a legal process known as ‘transfer of equity’.
One person keeps the house, the other takes a bigger share of other assets
This means one spouse will exchange their share of the property for a greater share of other assets. A common scenario would be ‘Person A’ surrendering their share in the property in exchange for ‘Person B’ surrendering their right to a share of Person A’s pension.
The property is sold and the proceeds split
In some instances, the divorcing couple may choose to sell the property and divide the proceeds. This is one of the most straightforward ways to split an asset in a divorce, as it gives both parties the opportunity to use the money to purchase new properties individually.
Where there are children, this sale may be deferred until a later date, perhaps when they have all attained the age of 18, allowing the children the stability of staying in the home with one of their parents. This can be set out in a court order, such as a Mesher Order.
Who gets the house when there are children involved?
In all instances involving children, their welfare should be the top priority. Because of this, the question of what happens to the house in divorce can be massively influenced by the needs of the children.
In order to reduce the amount of disruption to the lives of the children, it is often recommended that any children remain in the family home with one of their parents. However, in some instances this may not be possible due to the primary care giver being unable to afford to remain in the property. In such cases, one possibility is for the parent who moves out of the property to continue to help cover the mortgage through paying maintenance.
If it is not practical for the children to stay in the current family home, then any arrangements made between the parents should ensure that suitable accommodation for the children is provided.
How the court decides who should get ownership of the house in a divorce?
As stated above, the matter of what happens to the family home in divorce is normally agreed voluntarily between the separating parties. However, even if court proceedings are not required, it is still worth bearing in mind what factors a court would look at should the matter come before the court, because the court will be required to approve the voluntary agreement to ensure that it is fair and equitable.
When making a decision the court will always aim to divide the assets of the marriage as fairly as possible, taking all relevant factors into consideration. It is worth noting that this may not necessarily result in a fifty-fifty split of the assets of the marriage.
Factors a court is likely to consider when deciding the division of assets in divorce, include:
- The total value of the shared assets
- Whether there are children involved
- The income of each party
- The standard of living enjoyed before the separation
- The earning capacity of each spouse
- The length of the marriage
- The age of those involved
- Each party’s current financial needs
- Each party’s expected future financial responsibilities
- Each party’s contribution to the marriage (both financial and otherwise e.g. childcare)
Speak to our divorce solicitors in Clapham about property and divorce
Our divorce solicitor in Clapham can assist you in all matters related to your divorce or separation, including making a decision regarding what happens to the house. We understand how difficult this situation may be for you and will always provide an empathetic service tailored specifically to the needs of you and your family.
Our firm is headed by Donna Goodsell, a highly skilled family law solicitor with over 25 years’ experience. Donna is available to provide an expert and personal service in relation to your divorce.