What Happens to the Family Home in Divorce?

What Happens to the Family Home in Divorce?

Introduction: The most pressing issue

For many people going through divorce what happens to the family home is the most pressing issue. Not only is it the place where they live, it is often also their most valuable asset: not knowing what is going to happen to it can cloud the entire divorce process.

In this article we will try to lift that cloud, by answering some of the most common family home-related questions asked by those going through, or contemplating, divorce.

Before we proceed, we should say that in the vast majority of cases what happens to the family home is agreed between the parties, without the need for contested court proceedings. What happens in those cases, therefore, is what they want to happen.

Anyway, on with the questions. (Note that some of the questions will overlap, so the answers may cover the same ground.)

Can I stay in the home?

The answer to this depends upon whether the house is owned, and by whom:

• The home is owned jointly: You have the right to occupy the property, unless the court says otherwise, by ordering that the property be sold, by ordering you to transfer your interest in it to your spouse, or by making an occupation order against you (see below)
• The home is owned by you: Here, your right to occupy the property is essentially the same as if the property was owned jointly.
• The home is owned by your spouse: You have a right to occupy the property all the while you are married to your spouse. Obviously, this means that the right will lapse when the divorce is finalised. However, you can register a ‘Notice of Home Rights’ against the property at the Land Registry, effectively extending your right to occupy the property until such time as the court has sorted out what is to happen to the home. Otherwise, the court can suspend or terminate your right to occupy by making an order, as mentioned above.
• The home is rented: If the home is rented jointly or in your sole name, then you have the right to occupy it. If it is rented in your spouse’s name then you have the right to occupy it all the while they remain your spouse.

My spouse is abusive – can I have them removed from the home?

If you are the victim of domestic abuse by your spouse then you can ask the court to make an order requiring your spouse to leave the home. This is known as an ‘Occupation Order’. An Occupation Order can be made for a specified period, until the occurrence of a specified event, or until further order of the court.

The Occupation Order may also forbid your spouse from approaching within a certain distance of the property.

The Occupation Order will state that, once they have left the property, your spouse must not return to, enter, or attempt to enter, the property, save for any specified purpose, for example to collect and return children on contact visits.

An Occupation Order can be made against your spouse even if you have left the property for your own safety, thereby allowing you to return.

The Occupation Order can also set out who should pay any mortgage repayments, rent and other outgoings in respect of the property.

What if it was my home before we got married?

This may or may not be relevant to what happens to the family home, depending on such things as:

• Whether there was a Pre-Nuptial Agreement: If one party already owns the property before the marriage then they may wish to enter into a pre-nuptial agreement, stating that they will keep the property in the event of a divorce. As the law stands at present, pre-nuptial agreements will normally be upheld, unless the court considers that that would not be fair.
• The Length of the Marriage: As a generalisation, the longer the marriage lasts the more likely that the court will consider that the property has become a ‘matrimonial asset’, which should be divided between the properties.
• Whether the property has been improved during the marriage: One of the ways that the property can become ‘matrimonial’ is by it being improved during the course of the marriage, especially if the non-owning spouse contributed towards the cost of the improvements.
• Who paid any mortgage on the property: Similarly, if the non-owning spouse contributed towards any mortgage on the property, then it is more likely to be considered a matrimonial asset.
• What the Needs of the Parties are: Even if the property is not considered to be a matrimonial asset, the court can still award a share of it to the non-owning spouse, if that is required to meet that spouse’s financial needs.

Can I keep the home?

This and the following two questions are all closely linked, but reasons for one spouse keeping the home include the following:

• It was theirs before the marriage and is not Matrimonial Property: As explained above
• They Require the Property to Meet their Housing Needs: It may simply be that one party’s housing needs are greater than the other party’s housing needs. The most common reason for this is of course where there are dependent children, who will primarily live with one party. As a general rule, the court will not want to force the children out of the home that they know, if that can be avoided.
• There are Other Properties or Assets: Obviously, it may be appropriate for one party to keep the home where the parties own two or more residential properties. Alternatively, where there are other assets, it may be appropriate for one party to have those assets, in return for the other party keeping the home.
• Buy-Out: Where the spouse keeping the property can raise the finances to buy out the other party’s share.

Will the home be sold?

The home will be sold if both parties agree to the sale, or if the court orders a sale. The court will order a sale if it considers that that is needed to enable the value of the property to be divided between the parties (e.g. where the party wishing to keep the property cannot afford to buy out the other party’s share), or if the court simply considers that the parties cannot afford to keep the property.

Note that the court may decide not to order an immediate sale of the property. It may, for example, order that the property is kept until any dependent children have grown up, and only then sold.

How will the home be divided?

When deciding how the home will be divided, the court will have reference to the ‘Sharing Principle’.

The Sharing Principle states that, as a general guide, the matrimonial assets should be divided equally between the husband and the wife unless, and to the extent that, there is a good reason for them to be divided in some other way. Thus, in many cases the family home will simply be divided equally between the parties.

There are a number of good reasons why there should not be an equal division, but the most common is that one party’s housing needs are greater than the other party’s housing needs, for example because one party needs a larger home for the children to live in (see above), or because one party’s income (and therefore mortgage capacity) is significantly less than the other party’s income.

In such cases the court may, for example, order that the home is sold and that the net proceeds of sale are divided between the parties in unequal shares.

What about the contents of the home?

Hopefully, the parties will be able to agree how the contents of the home are divided.

If they cannot agree, then the court can order who has what, although this can be an expensive exercise, the cost of which in many cases can exceed the current (i.e. second-hand) value of the contents. What usually happens in such cases is that the parties provide the court with a schedule of all of the contents, with approximate values. The court will then go through the schedule, and decides who has what.

Note that if there are dependent children living in the property then their needs will be considered when the court makes its decision.

What if the home is rented?

If the family home is rented then a number of complications can arise. We cannot go into these in detail here, but in very simple terms:

• If you both want to leave the home, you can end the tenancy.
• If you agree that one party should keep the home, then you should ask your landlord if they will agree to the tenancy being transferred into that party’s sole name.
• If you agree that one party should keep the home, then you should ask your landlord if they will agree to the tenancy being transferred into that party’s sole name.
• Similarly, if you and your spouse cannot agree who should have the tenancy, you can ask the court to decide.

Conclusion: Next steps

The answers given above are very general, and do not go into great detail. Before proceeding with a divorce, you should first seek expert advice, tailored to your particular situation.

Walker Family Law’s team of specialist family lawyers can provide you with the expert help that you need. To speak with one of our lawyers, simply complete and submit the form, on this page.