Who gets the house in a divorce?

The divorce process can be tough enough without concerns over losing your home.  

At Harbour Family Law, we are frequently contacted by clients concerned about the fate of the family home they shared with their spouse during their marriage: 

Is their ex entitled to the house? Will it have to be sold? Do child arrangements affect property matters? If they have to buy a new property, should they wait until after the divorce? 

Not only is a property often one of a couple’s most valuable assets, but it can hold a deep emotional value, which can make this uncertainty even more difficult. 

In this article, we will try to answer each of these questions. Although there is no one-size-fits-all solution, we can help you to understand the different choices both couples and the courts may make about a shared property, and when each might be the most appropriate. 

Why might one spouse be able to keep a shared property after divorce? 

To put it simply, either when a divorcing couple has agreed this as part of their financial settlement, or when the court has ordered it.  

Couples could agree on this themselves for a number of reasons, including
 

• Providing a consistent home for any children, where one party will be looking after them most of the time 
• One spouse preferring to offset the home against other assets, such as their pension or a larger percentage of the parties’ savings. 
• Deciding that it’s “fair” that the original owner of the property, or the party who invested the most into the property, should keep it 

• One of the couple preferring to set up a new home either on their own or with a new partner 
• Only one spouse feeling comfortable that they can keep up on mortgage payments and the other outgoings for the property in the future. 

Although some of these considerations wouldn’t be taken into account during contested litigation, it’s a couple’s right to decide what makes the most sense to them, as long as the settlement is ultimately fair and meets the needs of both parties, along with any children.  

If a case goes through contested court proceedings, the court may rule that one spouse should keep the property based on many different considerations. These could include:
 

• Which parent/guardian any children under 18 will be living with most of the time 
• If moving would involve transferring children to a different school catchment area 
• Whether the property was used as a family home 
• The duration of the marriage 
• The age of all involved 
• The financial resources, income, and earning capacity of each spouse 
• The standard of living both spouses had during the marriage 

How do child arrangements affect property in divorce? 

Maintaining stability in children’s lives is a main reason that both courts and couples make the decision to allow one spouse to keep a property.  

Moving to a new home on top of a new family dynamic can be disruptive, and children’s wellbeing is a top priority in the eyes of the court. This can particularly be the case when children need to be within a specific district to continue at their current school. 

However, being your children’s main carer doesn’t guarantee that the court will rule in your favour. As discussed above, the financial situations of you and your ex will be taken into account, as well as other considerations. 

Where it is deemed best that the primary carer of the children stay in the family home, it also doesn’t necessarily mean that they get to keep it permanently. The court may decide that the property should be sold after a specified time period. This may be once a child finishes a certain phase of schooling, or when the youngest of the children turns 18.  

Does it matter who is currently living in the home? 

Often, one spouse may choose to live elsewhere during a divorce or dissolution. This does not usually affect their immediate legal rights in relation to the family home. However, it may have other practical implications which you should carefully consider before making any firm decisions.  

In itself, leaving the home also shouldn’t affect the court’s approach to how your assets are split. However, if you demonstrate that you are comfortably able to live within your income outside the family home, this may be taken into account.  

This is because deciding how the needs of all parties will be met is a key factor in addressing financial remedies. 

It is often sensible to get clear, independent legal advice about your wider circumstances before making any big decisions such as moving out of the family home. You may wish to avoid purchasing a new property during a divorce if possible. If you do buy a new property, it can still be treated as mart of the matrimonial asset ‘pot’ even though your marriage has not yet technically ended. 

What are the different decisions a court could make over a property? 

The court is able to make various provisions concerning property, and these are known as Property Adjustment Orders. These are considered as part of your financial settlement.  

Some frequently occurring orders include: 

• Immediately selling the property and dividing the proceeds from the sale 
• Postponing the sale of the property until a specific event or time 
• Transferring ownership of the property to one party, with a legal charge back for the other 
• Transferring ownership of the property to one party, with a calculated buy-out or offset going to the other 

Each of these have the potential to be legally complicated. When thinking about dividing proceeds from a sale or buying out a property, the equity of the property will need to be calculated and there will be a decision about whether an equal or unequal share is appropriate. 

The other options listed here depend on at least one party receiving some kind of payout at a future date. When deciding what this will be, there may need to be considerations about issues such as mortgage payments, Capital Gains Tax, and any changes to the property value over time.  

With this in mind, it is important to seek legal advice before agreeing to any of these arrangements to ensure you get the fairest outcome possible. 

Who is responsible for paying the mortgage during a divorce? 

This varies depending on whose name is on the mortgage. 

If both you and your spouse have a joint mortgage, you may have “joint and several liability”. This means that both of you are responsible for paying the mortgage. However, it doesn’t necessarily mean that you must pay half each. 

As long as the payment is made, it can come entirely from one of you or you can decide how much each of you will contribute. If one party does not pay, the other can still be held responsible for the entire mortgage. 

If the mortgage is in one person’s sole name, that person is solely responsible for the payments. If the other party is a joint owner or has some other interest in the home (such as matrimonial home rights), they can choose to make payments in the event that their spouse does not pay. 

In the event of a Mesher Order (where the sale of a house is deferred until an event, without a transfer of ownership) the responsibility for mortgage payments may stay the same even after the divorce.  

Under what circumstances will a family home be sold? 

Especially for couples without children, choosing to sell shared properties during the divorce process is quite a popular option. 

Selling means that everyone involved can agree that the value of the property is the amount it sold for, rather than dealing with estimates.  

Although selling properties can take some time and money, depending on the housing market, this can save those divorcing from long negotiations and any resentment that may come from deciding which party will keep the house or flat.  

When it comes to court decisions, some examples of situations where they are more likely to order that the property should be sold include: 

• After long-term marriages without dependents, or where any children are over the age of 18 
• Where one party is not able to house or maintain themselves going forward without liquifying the value of the property 

• Where one party without dependents wishes to stay in the home, but cannot afford mortgage payments on their post-divorce income. 

The involvement of children under the age of 18 may make it less likely that the family home will be sold straight away. 

In very short marriages where both members of a couple brought in assets of a similar value, it may be more likely that the court would decide that each party can keep the assets they had before the marriage, including any properties they owned. 

However, any of these circumstances may be affected by other factors. Judges have a wide discretion about the factors they can take into account and the decisions they can make, but a family lawyer can advise you on your case and set you up for the best chance of success.

What are “Matrimonial Home Rights” and when do they come into effect? 

Through Matrimonial Home Rights, both parties have a right to stay in a family home until the divorce is finalised. This is true even if one party owns the property in their sole name. 

If you are not a legal owner of your property, you may be entitled to register a matrimonial home rights notice with the Land Registry. This protects your right to live in the home during the marriage, and can make it more difficult for your spouse to sell the property without your knowledge, as it warns any potential buyer of your rights in relation to the home.  

In special cases, the courts may grant you a continuation order, which extends your matrimonial home rights for a period of time after your divorce. 

There are a few exceptions to when you may be able to claim Matrimonial Home Rights. If your spouse shares ownership of the property with someone else (for example, a parent or former partner) this may affect your rights. Another exception is when one spouse takes out an occupation order against the other, often in cases of domestic abuse. 

You are also only allowed to claim home rights on a single home at a time – the one you lived in during your marriage. You cannot claim on second properties or holiday homes. 

What happens with rented property? 

Matrimonial Home rights extend to rental properties so, up until the official end of a marriage, both parties have the right to remain in their rented home if they choose to as long as the tenancy continues.  

If you have a joint tenancy, both of you are responsible for the rent being paid. Depending on the type of rental agreement, either party might also choose to give notice to the landlord. 

If the tenancy agreement is only under your spouse’s name, they are solely responsible for paying the rent. Your right to stay in the property expires when you receive your Final Order of divorce or dissolution. 

 If your spouse decides to move out, you might be able to take over paying the rent or the whole tenancy, but this will depend on the rental agreement with your landlord. 

How can I find out more about my property rights in a divorce? 

If you’d like to find out more about where you stand with regards to your family home, we suggest contacting a solicitor who specialises in divorce. They will be able to look into your circumstances and help to advise you on your next steps. They may also be able to put you in contact with trusted property surveyors and other useful professionals if necessary.  

Harbour Family Law are specialists in divorce and dissolution, with a combined experience of over 80 years working with separating and divorcing couples. We strive to combine legal excellence with a constructive, supportive relationship with our clients, aiming for dignified resolutions. Get in contact with us today to discover how we can assist you with your matter.