The task of getting a divorce can often be trying and emotional for all parties involved, especially when it comes to deciding what happens to the family home once the divorce has been finalised.
The family home often has a lot of emotional and financial attachment for both parties, and the process of negotiating what the result will be is often complicated. This is why it is always recommended to have the guidance and support of a team of expert divorce solicitors whilst going through the arduous task.
In the vast majority of cases, divorcing spouses are able to agree objectively and amicably on what should happen to the family home. This can be done through 1-1 negotiation or other alternative dispute resolution-based methods such as mediation or collaborative law.
On the other hand, if negotiation tactics fail and a mutually agreeable decision cannot be reached, court proceedings may be unavoidable, and an application will need to be filed.
What methods can be used to divide the family home?
One partner buys out the other
If one of the ex-partners wants to remain living in the family home, they have the option of “buying out” their former partner (if they are financially able) by giving them a calculated amount equal to the former partner’s share of the house.
It is important to note that the former partner will need to agree to this, and the change in ownership will need to be done legally through what is referred to as a ‘transfer of equity’.
One partner keeps the house, the other gets a bigger share of the assets
As its name suggests, this method means that one spouse will forfeit their share of the property in exchange for a greater share of other assets (for example a larger portion of their ex-spouse’s pension).
The property is sold and the proceeds are split between the two partners
Sometimes the divorcing couple might decide to sell the property and divide the proceeds between them. This is often an ‘easier’ method of doing things as it allows a clean break from the relationship and provides both individuals with funds to purchase separate properties.
If children are involved, this sale may be put off until a later date (often until they are all over the age of 18) which provides the children with the stability of staying in the family home – this can be put in place via a court order.
Who gets the house in a divorce with children?
When it comes to divorce law, the welfare of any children involved will be viewed as paramount. Due to this, what gets the house during a divorce with children will often be largely influenced by the specific requirements of the children.
To reduce disruption to children, it will often be the case that they remain in the family home living with one of the parents. If this isn’t possible due to circumstances such as the primary caregiver not being able to afford to remain in the home, a potential solution would be for the parent who moves out to continue helping cover the mortgage, likely through maintenance payments.
If it is impossible for the children to remain in the family home, arrangements should be made that ensure that the children have suitable accommodation. This should be arranged between the parents.
How does the court decide who should get ownership of the house in a divorce?
What happens to the family home is typically agreed upon outside of the court by the separating partner. However if court proceedings are needed, there are multiple factors that the court will take into account when making a decision about who will retain ownership of the property.
It is also important to note that even if the separating couple can decide voluntarily between themselves, the court will still be required to approve the voluntary agreement to make sure that it is fair and equitable for both parties.
When making their decision, the court will always employ the ‘principle of fairness’. In doing so their objective will be to divide the assets from the marriage as fairly as possible, whilst taking all aspects and factors into consideration. This does not mean that the assets will be divided into a fifty-fifty split, as this will depend on each party’s financial and personal circumstances.
The main factors that a court will almost always take into account during a divorce house split include:
- Whether there are children involved
- The income of each partner
- The earning capacity of each partner
- The standard of living enjoyed before the separation
- The age of all parties involved
- Each party’s financial needs
- Each party’s expected future financial responsibilities
- Each party’s overall contribution to the marriage, including financial and otherwise e.g. childcare, household upkeep
- The total value of marital assets
- How long the marriage lasted
At Brethertons, we are aware that this can all appear overwhelming, which is why our divorce solicitors do their utmost to explain all of this to our clients in plain English, as well as dealing with any complicated documentation required. We are here to support you through what is bound to be a difficult time, whilst making sure that you remain fully informed of your divorce rights and entitlements throughout the whole process.
Consult our divorce solicitors in Banbury, Bicester and Rugby
If you would like to talk to one of our experienced and compassionate divorce solicitors, please get in touch with our team using the information below. Our divorce solicitors have years of experience helping clients navigate the divorce process and are well versed in the area of divorce and property. You can be sure that we will be able to support you through this already difficult time.