The matrimonial home is often the biggest asset in a divorce. It can be difficult to agree on a financial settlement when the majority of a couple’s wealth is tied up in a single property. We take a look at what happens when one person wants to sell.
If you are going through a divorce or separation, then reaching a financial agreement is often a priority. Finding a solution can mean that you have a secure home and that you are able to move on with your life.
However, separating finances is not always easy, particularly when a property is involved. The courts greatly prefer that a couple reach a separation agreement between themselves over financial issues. Where this is not possible, the next step is generally mediation.
If a resolution cannot be found, then the court can be asked to make an order in respect of financial issues. There is no clear-cut answer as to whether a matrimonial home will have to be sold, with each case decided individually.
How will the court reach a decision about who gets the house?
The court will look to divide matrimonial assets fairly, taking into account a number of issues, including the following:
- The welfare and needs of any children of the family;
- Who the children live with and where they live;
- The financial resources of each party, to include income and future earning potential;
- The parties’ financial obligations, both existing and in the future;
- Contributions that the parties have made to the marriage, to include finances, assets and other contributions to the family’s welfare;
- The parties’ standard of living during the marriage;
- The length of the marriage;
- The parties’ age;
- The value of the parties’ assets, both before, throughout and after the marriage;
- The needs of each party.
Although the court’s starting point is an equal division of assets, there are often reasons to give one party a larger share than the other. For example, where one party has substantially less earning capacity, possibly because they gave up their career to care for the children of the marriage, then the court may consider that they should receive more than half of the available assets.
When will the court order a sale of a matrimonial property?
It is open to one party to apply to the court for an order for the sale of the matrimonial home. If the court believes that a sale would be fair and in the interests of both parties, for example, enabling them to have a clean break, then an order for sale may be made.
The court will consider the following:
- Whether the property is needed to provide a home for any children of the marriage;
- Whether there is another option, for example, if the party who wishes to remain could take out a mortgage to pay off the other party;
- What the intentions of both parties are;
- Whether both parties will be able to house themselves.
Where any children of the marriage are aged below 18, then the court may delay the sale until they reach adulthood.
Reaching a financial agreement on divorce
It is important to deal with financial issues at the time of divorce. Failure to put a binding financial agreement in place means that your ex-spouse can go to court at any time in the future, potentially many years down the line, and make a financial claim.
Without an order, a former spouse has an ongoing right to claim assets and potentially ask for a share of your home or even for your home to be sold and the profits split.
For more information, see our Guide to dividing assets in divorce.
Contact us
If you are going through a divorce or separation, we can advise you in respect of your financial situation to ensure that your rights and interests are protected.
If you would like to discuss your situation with an expert family lawyer, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, London and Northampton.
