What happens to the house when you get divorced?
03 February 2021
For many people, the matrimonial property is not only their biggest asset, it’s also the place they call home. So when it comes to divorce, one of the most difficult issues is often what should happen to the house.
The answer really depends on your individual circumstances.
Your legal rights to the property
But before we explain the different possibilities, it’s important to note that financial ties exist between a married couple. This means that unless there is a Prenuptial Agreement stating otherwise, each of you has a legal right to live in the family home – even if one person’s name is not on the mortgage or the title deeds.
So if you purchased the property, don’t just assume that you will be entitled to continue living there following the divorce, or that you will be entitled to 100% of the property’s value. And on the other hand, if your name is not on the mortgage or title deeds, don’t expect that you will be kicked out onto the street. You have a legal right to a share of your ex’s assets – including the matrimonial home.
With that in mind, there are really two ways to decide what happens to the house when you get divorced: either you agree between yourselves and then get this agreed by the court, or the courts decide on your behalf.
You reach an agreement without the courts
Some people will be able to reach a decision as to what should happen to the matrimonial home between themselves. There are various options, including:
- Sell the property and divide the equity as you see fit, or as per the Prenuptial Agreement you have in place
- One person stays in the property and buys the other out
- One person stays in the property on the basis that it will be sold at a certain point in the future and the equity split
- The value of the property is transferred into one person’s name, who stays in the property. The other gets to keep alternative assets of similar value
- Part of the value of the property is transferred into one person’s name, who stays in the property. The other keeps an interest in the property, and will receive equity when it’s sold.
If you and your ex agree what should happen to your matrimonial home, you can ask a family solicitor to draw this up for you in writing, in a Consent Order. Once this has been drafted, you need the court to approve the order to make it legally binding.
You let the courts decide
If you and your ex can’t reach an agreement, you should try mediation. If this isn’t possible or doesn't resolve the issue, you will have to attend court where a Judge will decide how the property should be split.
The Judge will consider a number of factors and make a decision based on what is fair and reasonable to each person.
What will influence the Judge’s decision?
One of the most important things that will influence the Judge’s decision is whether or not you have children. The needs of children are put above everything else, and the intention is to limit the disruption on their lives as much as possible.
Therefore if you have children, it’s typical for the Court to rule that the primary care-giver should remain in the property with the children. What happens to the non-resident parent’s share of the property again depends on the situation. The Judge could potentially rule that:
- The resident parent must give their ex a lump sum of money in order to buy him/her out
- The non-resident parent must be awarded alternative assets as compensation
- There should be a Mesher Order, where the property remains in both people’s names, but the primary care-giver is entitled to live there until the children have grown up
- There should be a deferred Mesher Order, where the property is transferred into the name of the resident parent, but the other keeps an interest in the property.
If you don’t have children, or your children are no longer living at home, the Judge will consider other factors such as:
- Your ages
- The length of your marriage or civil partnership
- Each of your ability to earn
- Your usual standard of living
- The role each of you played in the marriage, for example, if either of you gave up your career to care for the children.
Again, the Judge may make a ruling very similar to those described above. For example:
- One person can remain in the property but must give their ex a lump sum of money in order to buy him/her out
- One person can remain in the property, but the other should be awarded alternative assets instead
- There should be a Martin Order, where one person is entitled to remain living in the property until a specified time
- There should be a deferred Mesher Order, where the property is transferred into the name of the person who remains in the property, but the other keeps an interest in the property.
The Judge will record the details of their decision in a Court Order, which means that it will be legally binding. So if you cannot decide what happens to the house during your divorce, it’s very important to get legal advice from a Divorce Solicitor to ensure that your case is as strong as possible.