The roof over your head is likely to be your biggest shared asset – so what happens now?
One of the most important matrimonial assets that couples have, both physically and emotionally, is the family home – and it doesn’t easily split in two. Trying to work out what’s best to do can feel confusing and stressful. There is no such thing as a ‘standard split’ as it will depend on the individual circumstances of a divorcing couple. Here we outline a few key areas to understand in order to take constructive steps to secure your housing future.
Don’t panic – while divorce proceedings are ongoing, you are both legally entitled to stay in your home
Reassuringly, you cannot be made to leave the family home without an official court order. If you are in a marriage or civil partnership, own your home (either outright or mortgaged) and live in the UK, you have ‘home rights’, regardless of who actually has their name on the deeds. This means you are both legally entitled to stay there unless a court explicitly says you can’t (for example, due to abusive behaviour). Home rights apply until the divorce is finalised.
You can check the situation and apply for home rights here via the UK Government website.
Staying in the family home has no bearing on who will ultimately be awarded it in a settlement
As David Connor, a divorce solicitor advises, moving out of the family home does not determine who will be awarded the asset. ‘While it’s wise to be cautious, it’s important to know that moving out will not affect your right to it on divorce.’
Moving into temporary accommodation, however, can significantly impact your financial position – if, for instance, you are contributing to the mortgage on the family home alongside paying new rental costs. Plus, if you have children, moving out may also negatively affect your relationship with them, so it is not a decision that should be rushed.
Access to children needs to be prioritised when making housing decisions
If possible, it’s best not to leave your home until arrangements for when and how you’ll see your children have been agreed, as it can sometimes be harder to secure contact if you have already left. These arrangements can be discussed directly with your ex-partner or spouse, in mediation or via solicitors. As a last resort, if discussions break down, court proceedings can be issued in order to establish regular contact and financial arrangements for the children before a divorce is finalised.
Get help to work out what you can afford regarding housing going forwards
Relate advises working out, early on in a separation, what you think will be the costs of running separate homes. This can help both with mortgage planning and negotiating your divorce settlement. It recommends the government-backed MoneyHelper Budget Planner as a good tool.
Getting a mortgage during or post-divorce can feel impossible – but it’s not. Not all lenders will instantly say no to you, and many will provide a proper underwriting process to assess your case individually. A good mortgage broker will be able to advise which lenders are best to approach. Unbiased provides a useful tool to help select the mortgage broker best suited to your situation.
Whether you want to stay in the property or get a new mortgage elsewhere, if you are struggling to prove your ability to meet the repayments, you could apply for a guarantor mortgage. This requires someone you know – typically a parent or sibling – to guarantee that they will step in to make repayments if you can’t.
Cohabiting during the divorce process can affect your settlement
If you live with someone during the divorce process, the court may consider that as a factor in asset division. Living with someone and sharing expenses places you in a better financial position compared to living alone and having to pay all of your own bills. This may mean that your allocation of marital assets is smaller.
The court will consider many factors in deciding how your family home is split – not just whose name is on the deeds
There is no set formula for deciding what happens to a family home. The circumstances of each divorce are considered alongside other matrimonial assets, with the financial and housing needs of children given top priority. Even if one of you has sole ownership of your home, the courts give this little weight, and many other factors for the division of assets are considered.
As divorce solicitor Nicola Cancellara explains, ‘The family home is a unique asset to the family courts and is given special treatment to ensure that both parties will be left with a roof over their heads once the divorce is finalised.’
There are several options for settling ownership of the home
- One person might buy the other’s share
- The house may be sold and the proceeds split
- You may defer the sale of the house for a specified period while the person who has primary care of the children stays in it – this is referred to as a Mesher Order
The timing of equity transfer is crucial
If the deeds of the house are being amended, the transfer of equity – when one spouse is removed from the title deeds – is an important step. After a lengthy divorce, it can be tempting to get on to this as soon as you have agreed the principles of future plans. However, lawyers recommend waiting to transfer deeds until the court order finalising your financial agreement is made. If not, there is a small risk that the district judge will not agree the order, in which case the transfer may need to be reversed.
It’s best not to go it alone
So many aspects of divorce are difficult, and working out your future housing can feel like one of the most challenging and worrying. Be sure to seek support and input from experts, friends and family.
There is no easy solution, but it will get sorted in the end. You can rest assured that the legal process prioritises making sure that both ex-partners plus any children are suitably provided for in terms of housing.
Whether it’s a different house or a mutually agreed way of owning your family’s previous property, creating a ‘new’ home is an important and positive part of moving forwards into life post-divorce.
