When going through a divorce and the related financial settlement process, one of the biggest concerns many people raise is what will happen to the family home. When we speak with clients, they often ask whether the home has to be sold or if one person can continue to live in it. The outcome from a financial settlement will often depend on your family’s situation and whether an agreement can be reached without the need to go to court.
How is the family home divided in divorce?
In England and Wales, the court aims to reach a fair outcome in divorce proceedings. In some instances, that does not always mean an equal 50/50 split. Even if the home is in one person’s name, both spouses may still have a claim to it if it was used as the family home or the other partner made financial or non-financial contributions to the home during the course of the marriage.
When deciding what should happen to the property, the courts will specifically consider:
- The needs of both parties
- The needs and welfare of any children
- The length of the marriage
- Each person’s income and earning capacity
- Contributions made during the marriage, both financial and non-financial
The needs of any children are usually the court’s first priority, especially when deciding on housing arrangements. If your separation has been fairly amicable, it may be possible to come to an agreement via mediation without the need to take the full matter to court. It is expected that you will try this route first, before proceeding with court action.
Can you buy out your spouse from the family home?
One person may wish to remain in the family home, especially if they have close connections in the community or their children attend local schools. It is possible for one of the partners to remain in their home if they are able to buy out the other person’s share.
This can be done by:
- Using savings or other assets
- Remortgaging the property to release funds
- Offsetting the value against other assets such as pensions or investments
If there is an existing mortgage, the lender must agree to remove the other person from the mortgage and confirm that the remaining owner can afford repayments alone. Buying out a spouse can allow one person to stay in the home while providing a fair financial settlement.
Can you sell the property in a divorce?
Sometimes the most practical option is to sell the home and divide the proceeds. This can be particularly suitable where there are limited assets or when both parties need funds to secure separate accommodation. Selling the property can also allow you to make a fresh start financially. However, there is not always a guarantee that your partner will be willing to sell the family home. You may need to apply for a financial court order in this case and this will set out how your finances will be divided. For it to be legally binding and enforceable, it must be signed by both parties and approved by a judge.
Can one person stay in the home?
One partner may be able to remain in the family home where children are involved. For example, the primary caregiver may stay in the property until the children reach a certain age or finish school. These specific details are often agreed through negotiation or mediation and after this period, the house will be sold and the proceeds divided. During the divorce process, both spouses may also have home rights, which means they have the right to live in the family home even if the property is not in their name. These rights are made to prevent one partner from being forced out without proper legal arrangements and these rights should be exercised before court action is taken.
What happens if you cannot agree?
Many couples are able to reach an agreement on the outcome of the family home through negotiation or mediation. However, if an agreement cannot be reached, the court can make decisions about what should happen to the property. The court may order the sale of the property, the transfer of the property to one spouse or a delayed sale at a later date. Each outcome will depend on what the court considers fair and practical in the circumstances.
How can we support property division in divorce?
Dividing assets during the financial settlement process in a divorce can be difficult and the family home can be even harder to agree on, as there can be an emotional attachment involved. Our experienced family law team can help you understand your rights, explore the available options and negotiate a settlement that protects your interests. We can also help ensure that any agreement is properly documented and legally binding so that both parties can move forward with clarity.
If you need any further advice, contact Adeeba Naseem, Head of our Family and Relationship Team on 0207 420 4193 or at adeeba.naseem@mackrell.com.
