If you are going through a divorce, you may have some concerns about what will happen to your shared home. This is likely to be your main matrimonial asset and it is not always easy to work out how this will be dealt with in divorce.
We take a look at your legal position and the decision a court might make if asked to intervene.
Who Gets To Stay In The House During A Divorce?
If you jointly own your home, you are both entitled to stay there. You do not have to leave and you cannot be forced to do so. If matters have become difficult, you should speak to a solicitor who will be able to advise you of your rights and enforce them where necessary.
Your home will generally be dealt with as part of your financial divorce settlement. This is a settlement that will deal with all of your assets and liabilities. It is crucial that a financial order is made when you divorce as your former spouse could make a claim in the future if you do not have an order finalising matters.
When Children Are Involved
The court will always prioritise the needs of any children if it is asked to decide a case. This is likely to mean allowing the children to stay in their home with the parent who will have the main day-to-day care of them. Which parent this is will be decided by looking at a number of factors, including who has had the main care of them to date.
For more information, see our guide to child arrangements.
How Can The Home Be Divided?
The court will try to ensure matrimonial assets are divided fairly. This could mean that one person has a larger share of other assets such as savings or pension provision by way of compensation if they will be giving up their interest in the home.
Alternatively, the property could be sold and the sale proceeds split in accordance with the financial agreement or order. A sale could be delayed until the children of the family have reached the age of 18.
If the person staying in the property is able, they could take on a mortgage to buy out the other owner.
How Does The Court Decide?
The court will look at a number of factors in deciding how to deal with the matrimonial home, including:
- The children’s needs
- How long the marriage has lasted
- The individual ages of each party
- Each party’s needs
- Any matrimonial assets
- Each party’s current and future responsibilities
- How much each party earns or are capable of earning
- The standard of living for both parties during the course of the marriage
- Any disabilities
Joint Mortgage Separation
If the property is subject to a mortgage, then the mortgage company will need to give its consent if the property is to be transferred to one party and the mortgage retained. If the property will continue to be owned by both parties, you will need to agree on who will be responsible for paying the mortgage, although you will both remain liable and any arrears will be enforceable against either or both of you.
Where the property is to remain in joint names, it could cause difficulties for the person who has left if they then want to take out a mortgage over another property.
Securing Your Rights To The Home
If your name is not on the title to the property, you will still have home rights to the property you shared during your marriage. These rights include the right to live in the property and potentially the right to a share of the property when your finances are dealt with at the time of your divorce.
It is vital however that you register these rights with HM Land Registry. A family law solicitor will be able to do this on your behalf. By registering your home rights, any potential buyer of the property would be notified that you have an interest in the property. Their solicitor would ask for this interest to be removed and the sale could not go ahead until this happens.
Your solicitor will be able to negotiate a financial settlement or ask the court to make a financial order which will include details of what is to happen to the home you have been sharing. Only once matters are settled and finalised will your solicitor agree to remove the Land Registry notice so that a sale could go ahead.
Contact Our Family Law Solicitors
If you are going through a divorce or separation and you have concerns about who gets the house, speak to one of our expert family solicitors.
Email us at info@witansolicitors.co.uk or fill in our contact form and we will be happy to help you. We have offices in Birmingham, Northampton, Wellingborough and London.
FAQ
Can I stay in my home while my divorce is going through?
Yes, you are entitled to stay in your home, even if your name is not on the title deeds.
What happens if my name is not on the title deeds to the home I live in?
If you are not a registered owner, you should ensure that your interest in the property is registered at HM Land Registry and speak to a solicitor about securing your share of matrimonial assets. They will be able to advise you of your rights and help you obtain a fair settlement.
Do I have to pay the mortgage if I am divorcing?
The mortgage should still be paid during a divorce. If it is not, you run the risk of losing the property or having to pay penalties and interest.
Who will pay the mortgage can be a subject for negotiation and your solicitor will be able to raise this point with your spouse’s solicitor to try and agree on a way forward.
Will my home need to be sold if I am getting a divorce?
It is not always necessary to sell your home if you are getting a divorce and it will depend on your individual circumstances. If you have children, the court may try to ensure that the matrimonial property is kept so that they still have a family home.
When do I need to sell my house?
In some instances, you may be required to sell your house. This could be if you do not have children and you are not able to buy out your spouse. Also, if you could reasonably downsize so that both you and your spouse have a home, selling could be ordered.
What is a property settlement agreement?
A property settlement agreement refers to the part of the financial agreement you reach with your spouse that relates to your shared home. Your solicitor will be able to go through the options open to you and negotiate with your spouse’s solicitor to try and find a solution.
Will I have to go to court to keep my home in a divorce?
The courts prefer that issues in a divorce are dealt with by way of negotiation wherever possible. If you ask us to represent you, we will try to reach an agreement with your spouse over your home. Where this is not possible, we can refer you to mediation. A neutral mediator will work with you both to explain your options and try to find a solution that you can both agree upon.
If you cannot agree, then it may be necessary to ask the court to make an order.
What orders can the court make in respect of my property?
The court has a range of orders open to it, including:
- A consent order, where you and your spouse have agreed on a solution and the court is simply ratifying this so that it is legally binding
- A property adjustment order stating which assets will be transferred to each party
- An order for sale, to include specifying how much of the sale proceeds each party will receive
- A Mesher order, delaying the sale until a certain date, is sometimes called an order for deferred sale
- A Martin order, generally used when the non-occupying spouse does not need the money from the property, delaying the sale sometimes for the rest of the occupant’s life
- An occupation order, setting out who can occupy the home
