Who gets the house in a divorce is a key question when you are separating from your husband or wife. You may want to keep the house for sentimental reasons or because you don’t want to disrupt your children. Maybe you can’t face the thought of a house move when you are going through the emotional turmoil of divorce proceedings and sorting out parenting and contact arrangements.
As a family law solicitor, I am often asked whether a husband or wife will get to keep the house in their divorce financial settlement. I understand how important it is that the question of who gets the house in a divorce is answered as honestly and as quickly as possible to help you plan for your future.
For divorce and family law advice call Angelique Holm on 0203 488 8620 or email
[email protected] or visit our website Hopeholm Family Law.
Who gets the family home when a husband and wife divorce?
A family law solicitor can only give you their best advice on who is likely to end up with the house as their divorce financial settlement when they have enough information about the assets and your family.
Information is needed because, contrary to popular belief, the mother doesn’t always end up staying in the family home with the children. Even if the house is owned in the sole name of the husband or wife it doesn’t mean that the legal owner will keep the property. In divorce financial proceedings the court can order that the family home is sold and the equity divided (not necessarily split 50/50) or that the house is transferred to the other spouse. In some circumstances, the court can order a delayed sale. For example, the sale of the house could be delayed until the youngest child is 18 as the parent caring for the children can’t downsize until the children have finished their secondary education.
The court has wide discretion over what should happen to the house and other assets, such as the family business, savings and investments, and pensions. That’s why your divorce solicitor will want to know all about your assets as well as assets owned jointly and owned in the sole name of your husband or wife. The family home can’t be looked at in complete isolation from the other assets.
Will I have to sell the family home if I get divorced?
You may not have to sell the family home just because you are separating or getting divorced. A lot will depend on how much the house is worth, the size of the mortgage (the amount outstanding),and the monthly mortgage payments. If the outstanding mortgage is large the mortgage company may not be willing to transfer the mortgage into your sole name. The mortgage company will make a decision based on your income but some companies will also take into account spousal maintenance and child support payments when assessing mortgage affordability.
Financial advisors can help you with mortgage options and divorce. A mortgage broker may recommend a solution or remortgage that enables you to stay in the family home whilst your spouse is released from the mortgage.
If your husband or wife cannot be released from the mortgage this may mean they cannot take out another mortgage in their name. This could make it unlikely that they will agree to you keeping the house as they won’t be able to rehouse themselves until you are in a position to get the mortgage transferred into your sole name. There are various options to achieve a mortgage transfer, such as a parent standing as guarantor to the mortgage or a parent helping you out financially so your mortgage is reduced to a level that the mortgage company will accept that you can take the mortgage over based on your income.
Is it best to keep the family home if you get divorced?
Assumptions can be made about whether it is best to keep the house when you are getting divorced. Divorce solicitors recommend that you consider the extent of all the assets before you come to a fixed view about whether you want the house. That’s because there are situations where it may be best for you to sell up or to agree to the house being transferred to your husband or wife. For example:
- Although a pension may have a similar value on paper to the amount of the equity in the family home the real value of the pension may be a lot more than the house equity if you had to invest the equity to produce a pension income. That may be particularly relevant to you if you plan to downsize to fund your retirement. You might be better off agreeing to the sale of the family home and to a split of the equity and a pension sharing order in respect of your spouse’s pension pot
- You may be able to afford to take on the family home but at what cost to your lifestyle if, even with your salary, spousal maintenance, and child support, you will not be able to afford holidays or send the children to school trips and will have to cut back on everyday items
- You want to stay at the family home because you think the children need continuity but will the children be heading off to university soon or moving to live with their partners? It is important to make housing decisions based on your needs. You may not want to stay in the house with its memories or have the upkeep associated with an older property
- You may want to share the risk with your spouse of assets going up or down in value. For example, if the deal is that you can keep the house if your spouse keeps the family business (of similar value to the equity in the family home) then you won’t be able to renegotiate the divorce financial settlement later on if the house price falls (so your equity is reduced) and the value of the business increases substantially over the same period
Negotiating who gets the house in a divorce
You can ask the family court to decide who gets to keep the house and to make a financial court order dealing with the ownership of the property and all other assets, such as pensions or the family business. Divorce solicitors say that it is normally best to reach an agreement with your husband or wife by negotiation so you do not incur the expense of contested divorce financial settlement proceedings. Once you have reached an agreement you can ask the court to make an agreed financial consent order so you have the protection and security of a binding court order.
Divorce solicitors can help you negotiate who gets the house after a divorce through solicitor negotiations or through providing legal support whilst you are participating in family mediation sessions.
For advice on divorce proceedings and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.