Common outcomes for the house
The way divorce law works in the UK means that no two cases are the same. There are lots of factors which affect what happens to a house after the divorce, but the common options are:
- Selling the house, and splitting equity between you and your partner (this split does not have to be 50/50).
- 'Buying out' one partner and remaining in the house (the house does not need to be sold). This often requires a new mortgage.
- One partner staying in the house with the other partner receiving a lump sum, or retaining a ‘stake’ in the house. They would then get a previously agreed proportion of the proceeds when the house is sold.
- One partner remaining in the house until certain conditions are met; such as all children turning 18, after which the house can be sold.
The options available to you will depend on your own circumstances. For example, you and your ex-partner might be able to settle without courts. Whether you have children, or whether one of you can afford to move out of the house, might also be considered.
Splitting the house without going to court
You don’t need to go to court to decide what happens to your marital home after divorce. In the first instance, if you have a prenuptial agreement with your spouse, what happens to your property and assets may be laid out in that. If not, there are still plenty of avenues that don’t lead to the courtroom.
If you are on good speaking terms with your ex-partner, you can settle issues related to the divorce without going before a judge. Despite this, it is advisable that you hire a solicitor to give you legal advice.
You can also enter mediation with your ex-partner if you cannot come to an agreement on your own. Mediation can bring ex-partners to an agreement on issues around the property, finance, and childcare. This also avoids going to court, which can be expensive, draining, and time-consuming.
Going to Court
In some cases, former partners will not be able to come to an agreement outside of courts. When dividing the marital assets, the judge will consider the ‘Section 25’ factors (Section 25 of the Matrimonial Causes Act 1973), which include:
- Income, earning capacity, financial resources and property of each spouse.
- Financial requirements and needs of each spouse.
- Spousal contribution: what each spouse has given to benefit the welfare of the family.
- The value of the benefit to each spouse that one spouse would lose because of the divorce.
- Standard of living the family was used to before the marital breakdown.
- The mental and physical capacity of each spouse.
- Ages of each partner.
- Conduct of each spouse (if it was deemed enough that it would be unfair to disregard it in the eyes of the court).
Marital Assets and the law
The courts see marriage as a partnership. Therefore, assets acquired during the marriage are considered to be ‘marital assets’ which can all potentially be divided. The courts also consider where a partner may have lost assets they would have had if it weren’t for the marriage. For example, one partner might have stayed at home to look after children while the other worked. This also means the name on the title deeds of your property can have little bearing on who gets to live in the property after the divorce.
Protecting your rights to live on your property
If your marriage is breaking down and you do not have your name on the deeds of your home, you might want to consider protecting your rights. By registering a Notice of Home Rights against your property with the Land Registry, your partner will not be able to sell the property without your consent.
Who gets the house in a divorce with children?
A court’s priority is finding out whether there are any children involved in the divorce. In the eyes of the law, a child's welfare is the most important thing in the eyes of the law.
Children of all ages can be hit hard by divorces, so the court’s main aim is to lessen the impact on any child’s life. This means that the primary caregiver of the children will usually remain in the family house. Again, the title deeds on the house would not impact who lives in the marital house in the aftermath of a divorce.
There are several types of court orders to be aware of. They usually seek to give immediate preference to the children or ensure both partners retain some stake in the property. The first to be aware of is a Mesher Order.
A Mesher Order defers the sale of a house until a specific event happens, such as all dependents turning 18. This usually means the primary caregiver stays in the house with the children. The other partner may receive other assets to balance this distribution and may keep a stake in the property. This stake means that when the property is finally sold, both parties receive their percentage from the sale.
A downside to Mesher Orders is that both parties remain on the mortgage. This can make it harder for the ex-partner moving out to buy another property. A Deferred Charge Mesher transfers the deeds and mortgage to the partner remaining in the house. The partner moving out retains a percentage interest in the house with a second mortgage.
A Martin Order is a rarer order. It can be given in cases where the partner moving out has no immediate need of sale funds from the house. Usually, there will be no children involved. The order gives one partner the right to occupy the property for life, or until remarriage.
It is worth pointing out with all these orders that you may still need to pay Capital Gains Tax when the property is finally sold.
If you and your ex-partner are renting, the picture is slightly different. Whether you can continue living in your rented home will depend on your tenancy agreement, who pays the rent, and what your landlord decides.
- If you have signed the tenancy agreement, you can remain in your home. If it is in your partner's name, they can ask you to leave.
- If the tenancy is in your partner’s name, you can apply to the courts for an occupation order. This is a last resort, which sets out who has the right to live in the family home. Costing between £1000 and £5000, this involves two court dates and specialist legal advice. In Scotland, you will have to apply to the Sheriff Court to get occupancy rights which can last up to 6 months.
- If you are joint tenants, you both have a right to live there. If it is not a fixed tenancy you may be able to discuss terms with your landlord.
When you're looking to get a divorce or seek legal advice on divorce proceedings, The Law Superstore is here to help. You can find and compare solicitors for issues like divorce and property in the 'Family' and 'Disputes' section.