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  • 10 Feb 2021

    Property and Divorce – how is a house or property divided? FAQs

    It’s likely that one of the most valuable things a married couple will own is their family home. Not only is it valuable in monetary terms, but the home can also hold dear memories of bringing up families or be valuable due to its proximity to work, schools or other family members. 

    It can also be the asset that causes the most strain or challenge when it comes to a divorce or dissolution of a civil partnership. 

    This topic is not as cut and dry as other areas of family law. It very much depends on the individuals and their financial situation. 

    We have put together some FAQs around this topic with some brief answers to give you an overview of this.

    How is a house divided in a divorce in the UK?

    Ideally, when a medium to long marriage or civil partnership comes to an end, any assets would be shared out evenly between the parties, ideally by agreement. This is usually irrespective of whether the family home is owned in one party’s name or if only one party has contributed financially to its purchase. 

    There is no simple formula to apply to divorces with respect to who will ‘keep’ the home or the right to buy the other partner out and continue to live in it. Often, the decision around property assets comes down to the circumstances of the marriage – and its dissolution – and not always who owns the home or contributes most to the mortgage payments or upkeep and bills. 

    In an ideal world, divorcing couples would come to an agreement themselves about how they want to divide assets. Often in the case of home ownership, one party may ‘buy out’ the other and ideally allow the bought-out party to be in a position where they can put a deposit on another property. If this is the case, we can discuss an approach to help a couple amicably decide how to split their assets without going to court. 

    If a couple cannot come to an agreement, either person involved can apply to the court to decide on a fair division of assets. You can read more about how courts handle divorce and financial matters here.

    How does the court decide who has the right to keep the house in a divorce?

    You can read more about how the court will decide on how to split financial assets, including the home and property here

    As an overview, the court will make the decision based on:

    • The value of assets, both before, during, and after the marriage, which can include pensions.
    • Children under the age of 18, their needs, and who they will be living with going forwards.
    • In some cases, contributions may be relevant in terms of finances and assets and the different way in which assets may have been acquired and treated by the parties.
    • How much each spouse earns – and their future earning capacity – and their responsibilities during the marriage (e.g., bringing up the children).
    • The age of each person and the duration of the marriage.
    • Physical or mental disabilities.
    • The conduct of each person, but this is rare and will only be considered if it was so bad that it would be unfair to ignore it.

    Who gets the house in a divorce when children are involved?

    When a couple is getting divorced and having to consider the wellbeing of their children, this often becomes their biggest concern throughout the whole process. Many parents agree on the fact that keeping children in their family home can help minimise the impact a divorce has on them. 

    This situation can come with its own legal complications. For example, the court will look to minimise trauma and upheaval to children, which means they may sometimes order that they stay in the family home with the resident parent. But whilst the children’s housing needs will be a primary consideration for the Court it is also important to look at ways in which both parties can be allowed to adjust to their new lives post the divorce. Each case is completely unique and can be complicated, and therefore will nearly always require legal advice.

    What happens if one spouse owned the property before the marriage and is solely named on the deeds and mortgage?

    This is usually decided on a case-by-case basis in the UK. Generally, any house you lived in together, regardless of who owns it or who pays towards the mortgage, will be considered as a matrimonial asset and the starting point with a medium to long marriage would be equal sharing. However parties must bear in mind that Needs often trump Sharing.  It is crucial therefore to ascertain at the outset what the parties Needs are going to be. 

    If the property has never been considered as a marital home, then the usual Sharing Principle is unlikely to apply.  However, it does not mean that the property would be ignored completely by the Court and the specific circumstances of the case will be determinative.

    Can you sell a property before divorce proceedings? Can you force a sale?

    You can sell your house before starting or finalising the divorce proceedings and, in some cases, it can make the proceedings easier for both parties – it completely removes the question of who gets to keep the current home and can help divide assets up more easily. It also avoids the need to manage this process further down the line and agree on how the money from the sale is split after your divorce has been finalised. 

    When it comes to forcing the sale of a property, like many aspects of dividing up assets in a divorce, it comes down to specific circumstances. Factors such as length of marriage, financial needs of both people, children involvement and equity in the property are all considered. Unless the parties agree though it is unlikely the Court would order a sale until the very end of any Financial Order proceedings. If both parties agree though the property can be sold and, if necessary, the proceeds of sale can be held to the parties’ order pending an agreement or an order of the Court.

    Hegarty can support you through your divorce and help you get what you’re entitled to.

    Get in touch with the Hegarty Family Law team to talk through your divorce. We work with care and empathy, and our fixed-rate packages mean you can choose the legal partners most suited to your position. Find out more about our Family Law department and our Divorce packages here. 

    Contact our team today

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