Who gets the house in a divorce?

Divorce is a stressful and life-changing event for anyone that has ever had to go through it. The process is rarely straight forward, and divorces can often meet unexpected complications. We recently published a blog on assets being split in a divorce settlement and today, we discuss the issue of who gets the house in a divorce settlement. 

When separating from your partner, one of the most stressful questions you’ll have to ask yourself is ‘where will I live?’. If you and your partner purchased a home together and lived there, it’s natural that you’ll have sentimental feelings towards the house. As people, we spend so much time in our houses turning them into homes by renovating, decorating, and making memories in them, it’s not easy to just give it up in a divorce.

The Matrimonial Home is central to a marriage and will probably be the most valuable asset to be dealt with as part of your divorce. The division of assets is usually based on the financial needs of each person, and this includes the Matrimonial Home, irrespective of whether it is owned in joint names or just one party’s name. Usually, the fact that one party may have paid the mortgage during the marriage is irrelevant. There is no simple and clear-cut answer or a ‘one-size-fits-all’ formula to apply to all divorces and most cases are determined by the financial needs and resources of the parties.

What legal rights do you have to your home during a divorce?

During a divorce in the UK, each spouse usually has the right to occupy their home until the divorce is finalised and a court order is made regarding the division of property and assets. Until then, both parties tend to have the right to live in the home, regardless of who owns it or who is named on the lease or mortgage. 

If you are in a marriage or civil partnership and own your home, home rights allow you to

• Live in the home until a court order is made regarding property division in the divorce or dissolution of the civil partnership.
• Seek a court order to have the other spouse or partner removed from the home if there is a risk of violence or threat of harm.
• Request that the court sells the home and divides the proceeds between the parties.

It's advisable to seek legal advice to understand your rights and obligations during a divorce or dissolution of a civil partnership.

Moving out amidst a divorce doesn’t mean you give up rights to the home

Sometimes the relationship breakdown is not amicable, and it might be impossible for you to live in the home during the divorce. If the relationship between you and your partner is not good and it is having a negative impact on yourself or any children involved, you might want to remove yourself from the situation. Moving out during a divorce does not necessarily mean giving up your rights to your home. 

However, it can sometimes have an impact on the outcome of the property division in the divorce, so it is important to consult with a lawyer to understand the potential implications of moving out during a divorce and to ensure that your rights and interests are protected.

Home sales can also be postponed

The financial aspects of Divorce proceedings can be complex and it's not uncommon for the sale of a property to be postponed until after the divorce is finalised. This can be due to a number of factors, including disagreements over the value of the property, disputes over how the proceeds from the sale will be divided, or the need to wait until other financial or property-related issues have been resolved. 

It might also be beneficial to postpone selling the home, to give children some stability despite the parents separating. In some cases, the parties might decide to sell after the youngest child reaches the age of 18 and is able to move out. Only then, the house is sold and the proceeds can be divided.  It's important to keep in mind that postponing the sale of a home during a divorce can have financial implications though, as the property may continue to accrue expenses, such as mortgage payments, property taxes, and maintenance costs. If possible it helps to have an agreement in place as to these matters.

Can you be forced to sell your home during a divorce?

Even if you do not agree to a sale, at the end of your case the Court can Order a sale of any property, including property you jointly own or own in your sole name. This is called an Order for Sale. 

If an Order for Sale is granted, both spouses are legally obligated to comply with the court's decision. If they do not comply, then a Judge can take an uncooperative party’s place and sign any paperwork to facilitate the sale. The proceeds from the sale will be divided between the spouses in accordance with any final Judgment.

What rights does joint ownership give you?

If you are joint owners of a home, you have certain rights and responsibilities during a divorce. These rights are governed by the laws of property ownership. 

Generally speaking, if you are joint owners of a home, you each have an equal right to occupy the property unless the court orders otherwise. This means that neither spouse can force the other to leave the property unless a court order is in place. 

When it comes to dividing the proceeds from the sale of a shared property, the court will take into account a number of factors including the financial circumstances of each spouse, the length of the marriage, and any other relevant factors.

What rights does sole ownership give you?

As the sole owner of a property, you have the right to occupy the property and decide what to do with it.  However, your spouse also has a right to occupy the property and not to be excluded from it (these are known as Matrimonial Home Rights). 

As part of Financial Order proceedings connected to a Divorce a Court can Order that a property is transferred from one party to their spouse, subject to any mortgage.  Or the Court can Order that the property is sold so that a lump sum can be paid to the other spouse.

If your partner owns the house you live in

If your home is owned by your husband or wife but was lived in as your matrimonial home, it is considered a matrimonial asset, even if you didn’t contribute to its initial purchase. The starting point with any matrimonial asset is an equal sharing however this can depend on other factors such as the length of the marriage or your financial needs and resources.

Paying the mortgage while going through the process of divorce

If both of you are named on the mortgage: If you are both named on the mortgage, this is known as joint liability and you are both responsible and liable for paying the mortgage. However, it doesn’t mean you are both liable for half. In the case where one person doesn’t pay their share, the other can still be held responsible for the whole mortgage. It doesn’t matter if one or both of you pay the mortgage – just that the payments are made. 

If only one of you is named on the mortgage: The person on the mortgage is solely responsible for the payments. However, if they don’t make the payments (for example, if they move out) then the other spouse/civil partner can pay, if they are a joint legal owner or have home rights. The mortgage lender has to accept these payments as if they were from the person named on the mortgage. 

Being named on the mortgage doesn’t mean that you are the legal owner of the property, it only means that you are responsible for making the payments.

The considerations for deciding who gets the house in a divorce

The court's primary consideration when deciding who gets the house in a divorce is what is fair and reasonable in the circumstances of the case. To make this determination, the court will consider several factors, including:

• Financial needs: The court will consider the financial needs of both spouses, including their income, expenses, and any other liabilities.
• Income and earning potential: The court will consider each spouse's current and future earning potential, including their employment prospects and ability to generate income.
• Contributions to the property: The court will consider any contributions made by each spouse to the property, such as paying towards the mortgage, carrying out renovations, or maintaining the property, in light of the other circumstances of the case.
• Care of the children: If there are children involved, the court will consider the needs of the children, including their age, health, and any special needs they may have.
• Length of the marriage: The court will take into account the length of the marriage, as well as any other relevant factors when determining the division of assets.

If you are facing a divorce and have questions about the division of assets, including the family home, it's a good idea to seek the advice of a solicitor like Hegarty Solicitors. We can help you understand your rights, negotiate a divorce settlement that is in your best interests, and ensure that your interests are protected during the divorce process.