Divorce with Kids, Who Gets the House?
13 February 2020
There are lots of decisions to make when getting divorced, particularly when it comes to the division of assets. Usually the biggest asset a couple will own is the family home. Deciding which person should get the house can be one of the hardest problems to tackle during a divorce.
There are no set rules to dictate what should happen to the family home. Instead, it can depend on a lot of factors, with the most important being whether you have children.
This is because divorce law in England & Wales prioritises the welfare of any children involved above anything else. This means the provision of a secure home for the children comes first, along with minimising disruption to their lives as much as is reasonably possible.
For this reason, the person responsible for the day-to-day care of the children will often be entitled to remain in the family home. So, who gets the house in Divorce is 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, even though the other person may not be entitled to live in the house, this doesn't mean they are exempt from paying the mortgage or that they are 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 arrangements can be formalised 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 until a certain point, such as the youngest child turning 18, with the house then being sold and the proceeds divided according to the Property 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.
Dealing with the Mortgage during Divorce
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 in Spousal Maintenance Payments to help cover 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 help find a solution you both agree on. 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.