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Who gets the house in a divorce with children?

In many divorces, the family home is the most substantial asset available to the parties to meet their respective housing needs going forwards.

Whilst emotionally there can be an attraction for one party to retain the house, the extent to which this is possible is entirely dependent on each individual case. The house cannot be looked at in isolation, and it is important that any negotiations in relation to the property are considered alongside income and pension provision.

What legal rights do I have to my home during a divorce?

If you are legal joint owner of the property (which means that the house is owned by you and your spouse), you have right of entry and right of occupation until such time as a financial Order is approved by the Court. This means that you cannot be forced to move out of the property, unless there is a Court Order (or, in circumstances where there are allegations of domestic violence, police bail conditions in place which restrict you being within a specified distance of the property).

Joint mortgage separation rights

If you and your spouse are named on the mortgage, you are both responsible for paying the mortgage. This does not necessarily mean that you should pay half of the repayment each and it is open to you agree what contribution you will each make. That being said, where there is a joint mortgage, you and your spouse will be jointly and severally liable for the mortgage repayments, which means that if of one party does not pay their share, the other party can be held responsible for the full amount.

To ensure that the mortgage repayments are met, it is important to have a discussion early on to confirm how the mortgage is going to be paid during your separation. This is particularly important in circumstances where you will need to obtain a mortgage in your sole name in the near future, as arrears on your joint mortgage can negatively impact your credit rating. It is also important not to make any changes to the existing arrangements without discussing these with your solicitor first.

The house is in spouse’s name only, what rights do I have?

When the property is owned in the sole name of your spouse and the property was lived in by you both as the family home, it is important that you register your home rights with the Land Registry. This is a relatively straightforward exercise, which registers your interest as a charge on the title register. This means that the property cannot be sold without your knowledge.

How does the court decide who to give the house to in a divorce?

When determining how the house should be dealt with on divorce, the Court has a duty to have regard to all the circumstances of the case. The first consideration is given to the welfare of any child of the family who has not attained the age of eighteen. Where possible, the Court will try to achieve stability for the children and it is preferable for the children to live in owned accommodation. However, depending on the circumstances of your case, that may or may not be affordable.

In addition to the welfare of the children, the Court will have regard to the following factors, known as the Section 25 Factors (Section 25 Matrimonial Causes Act 1973):

  1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
  2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. the standard of living enjoyed by the family before the breakdown of the marriage;
  4. The age of each party to the marriage and the duration of the marriage;
  5. any physical or mental disability of either of the parties to the marriage;
  6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
  7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
  8. the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Once the Court has balanced the above factors, there are a range of Orders which the Court can make in relation to the family home, including the following:

  • Selling the property and dividing the proceeds;
  • Transferring the legal and beneficial ownership from one party to another;
  • Postponing the sale of the home to a specified date, e.g. when your youngest child reaches 18, at which point the proceeds of sale will be divided.

Given that there is no ‘one size fits all’ approach to how the family home will be treated on divorce, we suggest that you take legal advice on your individual circumstances as soon as possible.

If you would like to speak to one of our family law specialists about divorce or other family matters please contact us.

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