When two people are separating, one of the most commonly asked questions is ‘who gets the house in the divorce’? In many marriages, there is likely to be a family home that will need to be dealt with in divorce. This property may be rented or owned by the separating couple and the divorce will have an impact on that home. Your home is one of the most important assets in your life, so it’s imperative that you understand your divorce house rights.
In this guide, we will explain all there is to know about divorce and the matrimonial home to alleviate your concerns.
How is a house divided in a divorce?
Some people mistakenly believe that once the divorce is finalised and the Decree Absolute (or Final Order) has been received, this brings all claims and matters to an end, including financial ones. This is wrong and, unfortunately, the reality of divorce housing rights can be far more complex. For example, even where the family home is in one party’s sole name, the non-owning party will almost certainly have a claim on the family home.
How your house is divided in a divorce depends on the circumstances. In most cases the property will be sold, and the proceeds of sale divided between the parties.
However, a transfer of the property from joint names into one party’s sole name may be appropriate. This would mean that one party would effectively purchase the other party’s share in the property.
What if there are children involved?
If the main carer for the children cannot afford to purchase the other’s interest in the family home and both parties want the children to have the benefit of continuing to live in the property, for example until they finish full time secondary education, they may consider an arrangement where the property sale is delayed. This ensures there is as little disruption for the children as possible. An agreement would need to be reached to include who would be responsible to pay the mortgage instalments, outgoings and how the proceeds of sale will eventually be split. These are known as Mesher Orders and whereas they are rarely imposed by a Court because they do not allow the parties to move on financially they are an option for those who wish to be more creative about their financial arrangements.
Can my spouse make me sell our house in a divorce?
In short, no. Both parties are legally allowed to remain living together in the home once separated. Even if you don’t have joint ownership of the property, your spouse cannot force you to leave and sell your house. Although, if the house is registered in just your spouse’s name and not yours, you should consider registering your home rights with the Land Registry, which essentially means the property isn’t allowed to be sold without your knowledge.
The only scenarios in which you may be forced to leave your property is if there is a Court Order, or in circumstances of domestic abuse, or police bail conditions and so forth.
Inevitably, post-divorce, you and your ex-spouse will not stay living in the same house. Some people may want to leave the property immediately, others may not want to or maybe can’t afford to. This can cause disagreements if you cannot amicably decide on who will stay in the marital home.
What happens if we have a mortgage?
If you and your ex-partner have a joint mortgage for your property, there will be additional steps you need to consider. The most important is to keep making your mortgage payments until you and your ex- have agreed on a financial settlement. Even if one of you have moved out of the home, you both still need to make your payments.
You should always speak to your mortgage lender to inform them of your situation and discuss any ways they can help alleviate the strain as you are moving through the stages of divorce.
Typically, the easiest way to deal with a mortgage after divorce is to sell the property and pay off the mortgage. However, if you can afford to, you could consider buying your partner out. This involves transferring the mortgage to one party and buying the other’s share (and equity) in the property. You will have to demonstrate to your mortgage lender that you can afford the mortgage independently.
If you have children and you want them to stay settled in the family home, you may need to continue paying your mortgage together.
What happens if we rent our home?
In terms of rented properties, the procedure is very different to that of a mortgage / ownership. When renting, you are not the owner of the property, meaning your home is not a matrimonial asset. Yet, this can still present difficulties when deciding who keeps the tenancy running and who moves elsewhere, especially if your tenancy agreement hasn’t yet ended.
Financially, it may not be affordable for both parties to change their living circumstances. However, both parties (if the tenancy is joint) have the right to remain there. You are allowed to stay or go as you please until your tenancy agreement has finished.
If the property is rented in joint names and you do decide to separate and relocate to start fresh, you just need to give your Landlord notice. Alternatively, it is possible for the property to be transferred into one of the couple’s sole names but, in order to do this, appropriate notice must be provided to the Landlord of the property.
It is important that any financial agreement ancillary to the divorce is recorded in a financial order known as a Consent Order. Do not enter into any agreement without seeking the appropriate legal advice.
If you wish to discuss your divorce house rights or any other family law issues, Newtons is here to help you to the highest professional standard through this sensitive time. If you are in need of our support and expertise, please contact us here.