Who gets the house in a divorce?

Who gets the house in a divorce?
Going through a divorce is a stressful time - even if your breakup is amicable, you’ll have a lot of changes to deal with, and a lot of uncertainty to cope with.

One major source of anxiety is whether you’ll have to sell the house when divorcing. 

To get specific advice about your situation, you’ll need to find a solicitor who specialises in Family Law.  For now, here is some information in general terms about what might happen to your house during your divorce.

How to split the house in a divorce

Deciding what will happen to your house in your divorce can be done in two ways:
  1. Mediation - you both meet with a family mediator (usually a solicitor) with the aim of reaching a fair and reasonable agreement;
  2. Court - within divorce or judicial separation proceedings, a court can make an order about what will happen to the house and other assets, even if you don’t agree.  
Either way, in a divorce, selling the house in the divorce isn’t the only option.  You could:
  • Sell the house it and split the equity* in a way that means you can both live independently;
  • One spouse could keep the house, take on the mortgage and give a lump sum of money to the other spouse to represent their share of the equity;
  • One spouse could live in the house in it until the children are independent, and then either sell the house and split the equity, or keep the house, take on the mortgage and give a lump sum to the other spouse.
  • One spouse could keep the house (and take on the mortgage) while the other spouse keeps more of the other assets, such as their pension and savings.

Who gets the house in a divorce?

There are no hard and fast rules about this.  The starting point in any divorce is to assume that both you and your spouse will split everything 50:50, including the equity in the house.  That ratio can change in favour of either of you depending on factors such as:
  • The needs of any children;
  • How old you both are;
  • How long the marriage lasted;
  • How much you both earn 
  • How much you could afford to borrow, and whether your spouse can be released from the mortgage;
  • What other assets you have.
It doesn’t usually matter who has caused the separation - behaviour that doesn’t directly affect the finances (such as an affair or even domestic abuse) won’t usually affect who gets what in the divorce.

Do you have to sell the house in a divorce?

If you can’t reach an agreement, the court could order that:
  • the house is to be sold, or 
  • that the house shall be sold when the children reach a certain age, or 
  • that the house is to be transferred to one spouse, who will have to pay the other spouse a set amount of money in return.  
The court will always consider the needs of any children of the family (including their need to live in the family home) first and foremost.

Ideally, you and your spouse should agree what will happen to the house.  You could agree that one of you will get the house, and the other will get more of the savings/pension etc.  This is much quicker, and cheaper, than asking the court to decide, and you’ll both find it easier to accept an agreement than an order imposed on you.

Speak to an independent financial advisor or mortgage broker and see how much you could afford to borrow based on your income and any benefits/maintenance you’ll be likely to receive.  

If you can afford to take on the existing mortgage, you could agree with your spouse that you’ll do so and then agree to pay them a share of the house either there and then, or when the children are independent - that might mean selling the house at that point, or you might be able to raise additional borrowing at that time.

Your rights if you leave the family home

Your rights if you leave the family home are just the same as if you were to stay.  Your safety is your priority, so if you are in danger from your spouse then get to a place of safety and you can sort out the ownership of the house later.

By being married (or in a civil partnership), you have rights over the family home:  

     1. A right to live in the house:

You and your spouse both have the right to live there (and if one of you changes the locks, the other is allowed to break in as long as they put right any damage caused).  Obviously, on a separation it’s not easy or indeed healthy to remain living together if there’s tension, so one of you will need to find alternative accommodation sooner rather than later.

If you leave, you can still seek an order or agreement to move back in. 

     2. A right to the equity in the house

It doesn’t matter in whose name the deeds are written, you have rights over the house and equity as a spouse.

Even if you move out, you can seek up to 100% of the equity (which your spouse could raise through borrowing, as well as taking on the mortgage).  You might also seek a share of your spouse’s pension, and savings - your share of the savings could be used to pay legal and conveyancing fees to buy a new house, and to furnish it.  

If you move out and your name isn’t on the deeds (i.e. if the house is in your spouse’s sole name), you’ll need to apply to the land registry to put a note on the deeds that would prevent your spouse selling it without your agreement.

If your name is on the deeds and you leave, you don’t need to do anything with the land registry because your spouse won’t be able to sell it without your signature.

You also still both have the responsibility to repay the mortgage, if both your names are on the deeds. 

What happens to the house contents in a divorce?

If you decide to leave, you might agree that your spouse can stay living in the family home and keep the furniture and furnishings, in which case you should seek extra money from your joint savings to furnish your own house.  Alternatively, you and your spouse could agree that the furniture be divided fairly, in which case you may need to put your share into a storage unit until you’ve moved into your new house.

Get tailored legal advice 

You should see a solicitor as soon as you can, especially if you’re considering leaving the house.  To get the most out of your initial appointment, gather the following information and take it with you:
  • An idea of how much the house is worth (if you have time, get three valuations from local estate agents to see how much it would go on the market for);
  • How much you owe on the mortgage;
  • Your income and a list of outgoings;
  • Details of any savings, investments, pensions (if you have time, ask your pension provider for a Cash Transfer Value) and other assets like cars.
If you can get information about your spouse’s income and assets, take that information too.

If you’re concerned about how you’re going to pay your bills and live independently, you should also make an appointment to talk to the Citizens’ Advice Bureau about benefits entitlements, and check how much maintenance you’d be entitled to receive for the children (or need to pay).

*Equity is the market value of the house, minus any mortgage outstanding and costs of sale.

If you're going through a divorce or separation and find yourself needing a bit of 'space' to breath, do get in touch as we have over 125 stores nationwide so we're bound to have one near you.

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