What will happen to our house on divorce?
This is a question many people ask as they separate and divorce
For many families the biggest asset they have is their house, and looking ahead everyone will need to live somewhere.
For many couples their house has been their family home for years, children may have been born there and grown up in it. Significant family events may have happened there and it’s full of memories.
The uncertainty of what confronts you as you separate and divorce may feel overwhelming, and it might be nice to think there is a “one size fits all” calculation that will give you certainty about what the future holds including what will happen to the house. The thought of moving can feel very difficult and very upsetting.
The reality is each decision is based on individuals’ circumstances. Your house is not looked at in isolation but alongside the rest of your family assets and earnings.
As you separate
One question to consider when you separate is whether you will both stay in the house while you decide the long term plan for its sale or transfer.
You may decide to continue to live separately under the same roof, or you can agree that one of you will move out temporarily to create some space. In some circumstances there may be reasons why one person is not allowed to continue to live in the house, such as a Court Order keeping one person away from the property.
If you have a mortgage on your house and you continue to live there together having separated, then pending resolution of your finances you may agree to continue the mortgage payments on the same basis as before. Alternatively if one of you moves out you may agree to change payment arrangements.
How you pay the mortgage and other bills will depend on the circumstances of your family’s situation. You can agree on a short-term plan in mediation, so everyone knows where they are.
So who gets the house on divorce?
The arrangement you reach in family mediation has to be one a Court considers fair based on the needs of the family and all the circumstances of the case.
When we speak to clients about sharing assets we explain that the starting point is everyone’s needs, with the main concern being the welfare of any children under 18.
A Court will consider what are called “the Section 25 Factors” (Section 25 Matrimonial Causes Act 1973) from which a court can order the sale of the home and a division of the net proceeds of sale on a % basis.
Alternatively, it can order the transfer of ownership of the property from one of you to another, or it can order the sale be postponed to a specified time, say when your youngest child reaches 18, at which point sale proceeds are divided on a previously agreed split. Read more on our Property and Finance page.
Mediation is a process in which you and your ex can talk about what you both need, what’s most important to you and most importantly what’s most important for your children.
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