Who gets the house on divorce?

The matrimonial home. Not just your most valuable asset, but the place where you live. It’s no wonder that so many people worry about what will happen to it when they divorce.

So what is likely to happen to it, and what are the rules for deciding that?

The first thing to say is that it doesn’t necessarily matter who owns the house. Just because it is in one party’s sole name does not mean that they will automatically keep it. And just because it is owned jointly does not mean that each party will come out with a half share.

Assuming that you cannot agree what should happen to the house with your spouse, then you will need to ask the court to sort things out for you.

Matters the court takes into account

The court has a list of matters that it must take into account when deciding what should happen to the house, but there is no set formula that it uses. You cannot therefore say that the outcome in any given set of circumstances will always be the same.

The matters that the court must take into account include the following:

1. The welfare of any minor child of the family.

2.  The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.

3. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

4. The standard of living enjoyed by the family before the breakdown of the marriage.

5. The age of each party to the marriage and the duration of the marriage.

6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.

The most important of these matters is, of course, the first one. If there are dependent children then the court will want to ensure that they have proper housing. The arrangements for the children following the separation of their parents will often therefore be inextricably linked to what is to happen to the house. If they are to live primarily with one parent, then that may mean that that parent should remain in the house with the children, at least until they have grown up. It may also mean that the most appropriate thing to do is to transfer the house, or the lion’s share of it, to that parent.

But if there aren’t any dependent children the other matters will decide the issue.

Perhaps the most important of those other matters is the needs of the parties, taking into account their means. Both parties will of course require housing. All things being equal, this will usually mean they each get half of the house, either by it being sold and the net proceeds being divided equally, or by one party buying out the other’s half share.

But if one party has considerably greater income than the other then their housing needs may be less, as they will have a greater mortgage capacity. In such cases it may be appropriate for the less well-off party to have the lion’s share of the house, or even all of it.

The last thing we want to mention relates to the last two matters listed above: duration of the marriage and contributions. If, for example, the house was owned by one party prior to the marriage, and if it was a short marriage then it may simply be appropriate for them to keep it after the divorce.

These are just a few examples of how the rules for deciding what should happen to the house may work.

Practical considerations

There are, however, other practical considerations that could have a bearing upon what happens to the house.

For example, can the parties afford to keep the property? As mentioned above, it may be that the court will want the party looking after the children to stay in the house, at least until the children have grown up, but if there simply is not enough money available to pay the mortgage then the house may have to be sold.

Another practical consideration in cases where a transfer of the house to one party is being considered is: if there is a mortgage, will the mortgagee (the bank or building society) agree to release the other party from the mortgage? If not, then the other party may have difficulty in obtaining a mortgage of their own, and this could have a bearing upon the court’s decision.

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This is, of course, just a very brief overview of what can be a complex subject. For detailed advice, you should consult an expert family lawyer.