There are lots of decisions to make when getting a divorce, particularly when it comes to the division of assets. Usually one of the biggest assets a couple will own is the family home, and choosing who gets to remain in the property can be one of the hardest problems to tackle during a divorce.
There are no set rules that dictate what happens to the family home. It can depend on a lot of factors, with the most important being whether or not you have children.
This is because the law in England & Wales makes the welfare of any children involved in the divorce a priority. This means the provision of a secure home comes first, as does ensuring continuity in their lives as much as is reasonably possible. For this reason, the person who is responsible for the day-to-day care of the children will often be entitled to remain in the family home.
Who gets the house in Divorce is therefore closely linked to child custody, with the Court typically awarding the right to the primary care-giver. It is hoped that by allowing a child to remain in their home, the disruption caused by the divorce will be minimised.
However, this does not mean the other person is exempt from paying the mortgage or automatically written off the Title Deeds. There are different arrangements that can be made with regards to the finances tied up in the property, and these can be finalised by the Court in a Property Order.
For example, it might be agreed that one person is permitted to live in the house with the children up until a certain point, such as the youngest child turning 18. After this event, the house should be sold and the proceeds divided according to the Court Order.
Alternatively, it may be decided that the property will be transferred into one person’s name, but the other person will receive a certain percentage when the house is eventually sold.
Certain provisions can also be made if you rent a property, as it is possible to ask the Court to transfer a Joint Tenancy into just one name.
If you do own the property, the mortgage is another factor that must be taken into consideration. Often the person leaving the family home will want to be released from the mortgage, freeing them up to buy another property.
In such cases, it will be necessary to consider whether the person staying in the family home can afford the mortgage payments on their own. If not, a certain amount of money may be included within the spousal maintenance payments to reflect the mortgage costs.
Get Legal Advice from a Divorce Solicitor
Deciding what happens to the family home in divorce can raise emotions, but it’s important to put the welfare of any children first. If you need any help understanding what to do about property during divorce or separation, our Family Solicitors & Divorce Lawyers can help you.
We can help you work through the options to find something you both agree to. If a decision cannot be reached, we can help you through the next stage, which may involve obtaining a Court Order to reflect the best interests of your children.