Who gets the house in a divorce?

The family or marital home is often a couple's biggest asset, so it's no surprise that how to divide the house in a divorce is one of the biggest concerns for a separating couple.

Going through a divorce can be stressful, time-consuming, emotionally draining and expensive. And sometimes, selling the marital home isn't just about sentiment; it's about what's needed for everyone to continue living comfortably.

Ultimately, the marital home needs to be divided fairly. The needs of both sides must be taken into consideration, and above all, the children must always be put first.

There are a number of ways, both in and out of court, people can divide the marital home fairly.

Who gets the house in a divorce?

Although each case is different when it comes to the division of assets in a divorce, all cases need to make sure the final settlement is fair for everyone involved. Various factors will influence this decision, such as the needs of any children, and the financial resources and contributions of each spouse.

Though the family home is often the biggest asset, it can't be looked at in isolation. Other assets must be included when drawing up the final agreement, such as the income of both parties and pension provision.

That's why every divorce must be looked at on a case-by-case basis.

The most common solutions

There are a number of solutions separating couples can seek when selling the family home.

Selling up

This is often the simplest route and gives each spouse a clean financial break. The divorcing couple will put the house on the market and then split the proceeds.

Read more about how to sell a house during a divorce here.

Buying out

This is another common method that provides a clean financial break. One spouse may purchase the remaining equity from their ex-partner. Of course, this is only possible if one party is able to afford sole ownership or a new mortgage.

Spousal Maintenance

This route is often taken if there are children involved. One parent will sometimes stay in the marital home, while the other moves out but continues to make mortgage payments as part of a maintenance agreement. This may be a temporary solution, for example until all the children turn 18.

Settlement

This is a useful solution if there isn't a mortgage on the property. One spouse could stay in the house while the other gets a lump sum or a retained stake in the house as part of the financial settlement.

Mediation

You don't always need to go to court to split the marital home. Going through a divorce can be exhausting, which is why many couples want to avoid the stress of taking a case to court if possible. There are a number of ways a couple can split the assets without going before a judge.

For example, if the two parties have a prenuptial agreement in place, how the proceeds are divided may already be laid out. In other cases, the separating couple may be on good speaking terms and can settle the division of assets with their ex-partner without dispute (though it is still advisable to seek the advice of a solicitor in this case).

Sometimes, if a separating couple can't come to an agreement on their own, they may choose mediation as a means of coming to a fair agreement. Mediation can be used to settle issues around property, finance, childcare, as well as any other disputes following the relationship breakdown.

The family home in family law

The courts see marriage as a partnership, which means assets gained during the marriage are 'marital assets' all of which can be divided.

The courts will also consider if one party may have lost assets because of the marriage. For example, one partner may have decided to stay at home to look after the children while the other partner worked, meaning they have a lower earning capacity.

Section 25 Matrimonial Causes Act 1973

If the divorcing couple can't come to a financial agreement on their own, they may let the court decide. The court will judge the individual circumstances of both parties and the relationship breakdown before coming to a decision.

An equal division of assets is usually the starting point for all cases, but under Section 25 of the Matrimonial Causes Act 1973, other factors will also be taken into consideration, such as:

• The income and earning capacity of each party, including any properties or other financial resources each party has or is likely to have in the foreseeable future.
• The financial needs, obligations and responsibilities of each party in the near future.
• The spousal contribution of each party including how much they've contributed to the welfare of the family.
• The standard of living before the marriage broke down.
• The mental and physical capacity of each party.
• The age of each party.
• The conduct of each party (if appropriate).
• The length of the marriage.
• The welfare of children under 18 and how the financial arrangements will affect their welfare.

Court orders

A court order will be issued once a judgement has been made. There are two types of court orders:

Mesher Order

A Mesher Order will hold off a house sale until a specific event happens, for example all the children in the family home turning 18. In this instance, the primary caregiver will usually stay in the family home to look after the children. The other spouse may get other assets or keep a stake in the property to keep things fair.

A Mesher Order means both parties stay on the mortgage, which can make it harder for the non-primary caregiver to buy another property after moving out.

Deferred Charge Mesher

This court order will transfer the deeds and mortgage to the spouse staying in the marital home (usually the spouse responsible for looking after the children). The partner moving out will keep a percentage interest in the house with a second mortgage.

Martin Order

A Martin Order is a less common court order. It gives one party the right to occupy a property for life or until remarriage. A Martin Order may be given if the spouse is moving out of the marital home or has no immediate need of sale funds from the house. There are also usually no children involved.

With both of these orders you may still need to pay capital gains tax when the property is eventually sold.

How is the marital home owned?

The type of ownership of the home will affect how the matrimonial asset may be divided.

Joint legal ownership

There are a number of ways a property may be owned jointly, such as through a joint tenancy or by being tenants in common.

Joint legal owners

If you're a joint legal owner of the marital home, both parties will have a right to stay in the home during the divorce proceedings, until a financial order is approved by the court. As a joint legal owner, you can't be forced out of the property unless there are specific circumstances (such as allegations of domestic violence, negative conduct or police bail conditions that restrict your location).

As joint legal owners, you'll have joint names on the title deeds, but the Beneficial Interest in the property might be held in equal or unequal shares. Owning a property jointly doesn't necessarily mean a 50/50 split, as the court may have to consider the Beneficial Interest in the property.

Of course, this isn't a permanent solution for those wanting to separate from a relationship. It's always better to seek legal advice on how the property should be dealt with moving forwards.

Under this type of ownership, if one party dies the other gets the total share of the property. Even if the deceased party has expressed wishes for a different owner in their will, that beneficiary will have no legal rights to the property.

Tenants in common

Severing the joint tenancy will make each party tenants in common, which changes the rights of each owner. If the home is owned jointly as tenants in common, the property is still in joint ownership, but your share won't automatically go to your ex spouse if you pass away.

Sole ownership of the marital home

If the marital home is owned by just one spouse, it's really important for the other spouse to register a Notice of Home Right with the Land Registry. This registers and protects the non-owner's rights in the property and stops the home from being sold, transferred or mortgaged without their knowledge. They can remain living in the property without fear of being forcibly removed.

This is, however, only a temporary measure until the financial consent order is in place. Once the court issues the decree absolute, registration becomes null and void, so you must register before the divorce is finalised.

If you are the sole owner of the marital home, you have a right to remain living in the property unless there is an occupation order in place stating you must live elsewhere.

Read more about your housing rights during a breakup here.

Selling a house because of divorce

If you're selling a house because of divorce, you need to get a valuation from an estate agent or surveyor. This is really important for the overall financial settlement.

If you have a joint mortgage, you'll also need to inform your mortgage lender immediately. If you're unable to meet mortgage payments, this can damage credit scores for both parties and make future mortgage applications much harder.

Should you sell a house before or after a divorce?

The decision to sell a house before or after divorce will largely depend on the financial resources of each spouse. If each party has independent means and savings, there may be no need for an immediate sale, especially if they're happy to continue living together during divorce proceedings or until other living arrangements can be made.

However, if either party is in urgent need of money, it may be better to sell the family home as fast as possible. But if there are repairs or alterations needed before the house can be put up for sale, this may delay the process if there are disputes about who is responsible to pay for the work.

Joint mortgage payments

If a divorcing couple has a joint mortgage, they are both equally responsible for mortgage repayments. These payments don't need to be split 50/50, but if one party doesn't pay their share, the other party can be held responsible for the full amount. It's therefore very important to ensure you have a plan set in place as to how the joint mortgage will be split.

You also need to inform the mortgage lender of your split as soon as possible to avoid a negative impact on your credit score if the other partner fails to keep up with their mortgage repayments.

Selling a house in a divorce with children

The court has a duty of care to consider all circumstances of the case when children are involved in a divorce settlement.

The primary concern will be the welfare of any children under the age of 18. Going through a divorce can seriously impact a child's life. It can be emotionally draining for children of all ages, especially if they have to uproot their lives and adjust to new routines. That's why the court will try to achieve as much stability for any children involved in the parental dispute.

One way they can do that is to keep the children's location as a point of stability for them. So if the children spend most of their time in the family home, the court will aim to keep them there and give priority to the primary caregiver.

Common law spouse myth

Many people believe in the common law spouse myth, which assumes that if you live with your partner for a long period of time, you become a 'common law' spouse and this in turn generates property and other legal rights. This, however, is not correct. If you're unmarried or not in a civil partnership, your right to stay in the property will depend on how the shared property is owned.

Going through the divorce process in a rented property

The picture is slightly different for a renting couple going through a divorce. Whether you can remain living in your rented home depends on a number of factors such as the terms of your tenancy agreement, who pays the rent and how the landlord chooses to move forward.

If your agreement is under a sole name, that partner can remain living in the property. But if your name isn't in the agreement, they are within their right to ask you to leave. In this case, you may be able to apply for an occupation order as a last resort, which ascertains who has the right to live in the family home. However, this can be expensive, costing anywhere between £1000 and £5000, involving two court dates and specialist legal advice.

As joint tenants, both partners have a right to live in the rented property. If both parties agree to remain in the property until the divorce is finalised, no action needs to be taken. But if this isn't possible, it's always best to seek legal advice to discuss your options. If the tenancy isn't fixed, you may be able to discuss and adjust the terms with your landlord.

Summary: Keeping it fair

When it comes to who gets the house in a divorce, fairness is the ultimate goal. How the house is divided will depend on the circumstances of the divorcing couple and the welfare of the children.

A separating couple's legal rights to a property will also vary depending on the type of ownership and whose name is on the title deed. But ultimately, the court will always make a fair decision to ensure all parties are looked after. If you're unsure about what your rights are or how to sell a house in a divorce, it's always better to go to a solicitor before making any big decisions.

If you are ready to sell, it's really important to value your property first, so you know the worth of the proceeds divided. For a quick instant valuation, check out our Online Valuation Tool today! And if you're ready to list your property, use our Estate Agent Comparison Tool to find the best agent for you.