What happens to the house in a divorce?

Edited by Alistair Myles - Partner

With over 15 years of specialist family law experience, Alistair works on complex financial remedy cases often involving assets in different jurisdictions and complicated trust structures. Alistair has worked on many reported cases over recent years.

When going through a breakup many people ask what happens to the house in a divorce? It's not just a property; it's been your family home. We have guided many clients through these challenging times and this article will talk you through some of the key considerations.

Divorce law aims to reach a fair outcome, considering the needs and contributions of both parties and prioritising the well-being of any children involved. However, what is deemed fair can vary significantly from one case to another. Each case is unique, and getting personalised legal advice at the earliest possible stage is paramount and may help you avoid unexpected pitfalls – this article does not constitute legal advice.

When it comes to deciding what to do with the family home, there are a few paths that a divorcing couple can take:

Sometimes, the simplest option is to sell the home and split the proceeds. This may be the cleanest way to ensure both parties get their fair share and can start afresh. However, whilst the split may be 50:50, this is not always the case. The correct split is not always straightforward and depends on several factors such as each partner’s needs, their contributions to the marriage (financial and non-financial), their financial position and the needs of any children.
One spouse can buy the other person’s share of the house. This can happen if one partner is particularly attached to the home, or it's deemed beneficial for the children. Again, this can be complicated, as it involves valuing the property, the person staying having the necessary finances to buy the other out and being able to secure the release of the other party from the mortgage, if applicable.
These are court orders that delay the sale of the house until a specific event or end date, such as when the youngest child turns 18 (Mesher Order) or even indefinitely, allowing one spouse to live in the house for life or until they remarry (Martin Order). These options are primarily about ensuring stability for children but can complicate future financial planning for the adults involved.

Several factors can influence the decision on what happens to the house, including:

Financial Contributions: Who paid for what, including the deposit, mortgage payments, and significant improvements to the home.
Non-Financial Contributions: This includes anything from raising children to supporting the other spouse's career, which might not be financial but still significantly contributed to the family's overall welfare.
Future Needs: The court will consider what each person needs to move on from the divorce, bearing in mind their earning capacity, age, health, and the needs of the children.

It's crucial to get proper legal advice early on. A good family lawyer can help you understand your rights, explore your options, and navigate the negotiations or court proceedings. Remember, every situation is unique, and what worked for someone else might not be suitable for you.

Whenever possible, it's best to try and reach an agreement out of court. Not only is this usually less expensive and faster, but it also allows both parties to maintain control over the outcome. Mediation, or simply both parties' lawyers working together to find a workable outcome, are excellent tools for facilitating these discussions in a structured and constructive manner.

“If you want a top-class divorce team, who get things done as quickly as possible and are always on call in a crisis - then this is the law firm and team for you. They are excellent value for money also - worth noting as a huge USP is their pricing in the market - it is very fair.”

Kevin Tewis - Client testimonial

Who gets the house in a divorce with children?

In England & Wales, when a divorcing couple have children, the primary consideration in deciding who gets the house is the welfare and stability of the children. The courts prioritise making decisions that are in the best interests of the children, which often means ensuring they experience as little disruption as possible.

There are many factors the courts consider. Here’s a simplified breakdown of how decisions are made regarding the house in such circumstances:

The court's primary concern is the children's physical and emotional stability. This often means the parent who will be the children's main caretaker has a stronger case for staying in the family home, especially if moving out would disrupt the children's access to schools, friends, and their routine.
The court will also consider each parent's financial ability to maintain or obtain alternative accommodation. If one parent can easily buy another house or rent a suitable home, this might influence the decision. However, the focus remains on the children's needs, which can override purely financial considerations.
In situations where it's decided that the children and the resident parent should stay in the family home, a Mesher Order might be used. This legal order specifies that the house cannot be sold until a certain trigger event occurs, such as the youngest child turning 18. This arrangement ensures that the children have a stable home during their upbringing, after which the property can be sold and proceeds divided according to the divorce settlement for a permanent solution.
The court will also consider other relevant factors, such as the non-resident parent's ability to have suitable accommodation for the children to stay in when with them and the overall welfare of the children, which includes their emotional and physical well-being.

It's important to note that while the children's needs are paramount, the court also strives to be fair to both parents. The ultimate goal is to ensure that all parties, especially the children, have adequate housing and that the financial settlement is equitable, and the court is unlikely to allow an outcome whereby there is a significant disparity between the standard of the homes that the children enjoy with each parent in the future.

Given these complexities, it's highly recommended for individuals going through a divorce to seek legal advice to navigate these decisions around the marital home. A family lawyer can provide guidance tailored to the specific circumstances of the family, advocating for an arrangement that best serves the children's needs while ensuring fairness to both parents.

Do we need to sell the house when we divorce?

No, selling the house is not a requirement when you divorce, but it is one option that many couples consider. The decision on what to do with the house during a divorce depends on several factors, including financial considerations, the needs of any children, and the preferences of both parties. Here are the main options available to divorcing couples in England & Wales regarding their family home:

This is a common route when neither party can afford to buy the other out or when both individuals want to start fresh. Selling the house and dividing the money can provide both parties with the funds to secure new living arrangements.
If one person wishes to remain in the family home, they can buy out the other's share. This option requires the purchasing party to have the financial means to do so, which might involve refinancing the mortgage (and securing the other party’s release from the mortgage) or raising funds through other means.
Some couples choose to retain joint ownership of the house even after the divorce. This might be done as an investment decision, with the intention to sell the property at a later date. This option requires a high level of trust and cooperation between ex-spouses.
In cases where there are children, and it's deemed in their best interest for one parent to remain in the family home, a court might issue a Mesher or Martin Order. These orders allow one spouse to stay in the house until a certain trigger event occurs (such as the youngest child turning 18 for Mesher Orders), after which the property can be sold and proceeds divided.

The best option depends on your individual circumstances, including your financial situation, your relationship with your ex-partner, and what is best for any children. It's also worth considering the emotional ties to the property and whether keeping or selling it would be more beneficial for your emotional well-being.

Given the complexity of these decisions, it's advisable to seek legal advice and possibly financial advice to explore your options and understand the implications of each choice. A family lawyer can help you navigate the legal aspects of the divorce, including property division, to ensure that the outcome is fair and aligns with your interests and needs.

Do we need to go to court to agree what to do with the house in a divorce?

No, going to court is not always necessary to decide what to do with the house in a divorce. In fact, reaching an agreement outside of court is often preferred due to the potential for saving both time and money, as well as reducing conflict. Here are the main ways couples can handle the division of property, including the family home, without going to court:

Mediation involves a neutral third party who helps both parties communicate and negotiate an agreement on various issues, including what to do with the house. Mediators do not make decisions for the parties but facilitate a constructive dialogue to help them reach a mutually acceptable agreement.
Each party can hire a solicitor to negotiate the terms of the property division on their behalf. The solicitors will communicate directly with each other, working collaboratively to reach an agreement that is acceptable to both parties, which can then be made legally binding without going to court.
If both parties can communicate effectively and agree on how to divide their assets, including the house, they can draft a written agreement outlining the terms. However, it's wise to have this agreement reviewed by a solicitor to ensure it covers all necessary aspects and is fair. Once an agreement is reached, it can be submitted to the court for approval without the need for a court hearing, making it legally binding.

“Ribet Myles have provided an exceptional service in helping me to reach my divorce settlement. From the top to the bottom, they have been a friendly but extremely professional company and have given me much needed guidance and reassurance throughout this stressful process.”

Dermot Jones - Client testimonial

Who gets to stay in the house during a divorce?

Another common question we hear is “During a divorce what happens to the house?” As you go through a divorce, who gets to stay in the family home can vary greatly depending on individual circumstances and whether an agreement can be reached either between the

parties themselves, through mediation, or by a court order if necessary. Here are the main considerations and processes involved:

Ideally, you and your former partner will come to a mutual agreement on who should stay in the house during the divorce proceedings. This can be based on practicality, such as who has primary care of any children, who can afford to maintain the home, or who may have alternative accommodation options.
If the parties cannot agree, they may use mediation to help negotiate and reach a decision. Mediation involves a neutral third party who assists the couple in discussing and resolving disputes, including the temporary living arrangements.
If an agreement cannot be reached and there is significant conflict, one party may apply for an occupation order. This is a legal order which sets out who has the right to stay, return or be excluded from the family home or part of it. Occupation orders are often used in situations where there is domestic abuse or the threat of abuse They are considered to be relatively draconian, and so there is a high threshold, but they are granted in order to protect the safety of any occupants of a property (particularly children) when no other option exists.
The court has to balance the harm that would be caused to the applicant (and any children) of not making the order, against the harm that would be caused to the respondent if the order were made.

Considerations for the Decision

Children's Welfare: The primary consideration is often the welfare of any children. The parent who is the primary caregiver is more likely to be allowed to stay in the home with the children to minimize disruption to their lives.
Financial and Practical Arrangements: The ability of each party to maintain the home financially and to secure alternative accommodation plays a role in determining who stays in the house.
Safety and Welfare: The safety and emotional welfare of both parties and any children are paramount. If there are allegations of abuse, this will significantly impact decisions regarding who stays in the family home.

Legal Representation and Court Orders

If the matter goes to court, a judge will make a decision based on what is fair and reasonable, considering all the circumstances. The court has wide discretion and will aim to balance the needs and welfare of both parties and any children.

Temporary Arrangements

It's important to note that any arrangement regarding who stays in the house during the divorce proceedings is typically temporary. The final division of property, including who ultimately remains in the home, if anyone, will be decided as part of the overall settlement or court order finalising the divorce.

If the court considers it too severe to exclude someone from the property altogether, it may make orders defining how the house is to be occupied jointly in the interim, such as who occupies which room as their bedroom, when one party may use joint spaces such as kitchens and bathrooms, and so on.

Given the complexities involved, it's advisable to seek legal advice to understand your rights and options fully. A solicitor can help you navigate the process, negotiate on your behalf, and, if necessary, represent you in court to ensure your interests and those of any children are protected.

“I am so pleased I was introduced to Alistair Myles at Ribet Myles. The team have been amazing, with all the emotional upset of going through my divorce, Alistair and his team have always acted in a professional manner with the added bonus of being completely on top of everything with care and compassion. Very knowledgeable and always knowing the best way to move forward bringing my divorce to an end."

Christina Baccarini – Client Testimonial

Will I lose the house if I move out?

What happens if you leave the house during a divorce? Moving out of the family home during or before divorce proceedings does not automatically mean you lose your legal rights to the property or any claim to it in the divorce settlement. In England & Wales, the ownership rights to the family home are determined by a number of factors and the overall financial settlement agreed upon or ordered by the court during the divorce process. Here are some key points to consider::

Legal Ownership: If your name is on the deeds of the property (you are a legal owner), your rights to the property remain regardless of whether you live in it. The same principle applies to both spouses if the property is owned jointly.
Occupancy: While moving out might impact your practical day-to-day life and possibly the immediate living arrangements for your family, it does not change your legal ownership or rights to a share of the property in the divorce settlement. If your name is not on the deeds to the family home, it is possible to take steps to register your family home rights against the property, and it is often extremely important to do this as soon as possible.
Your claim to the property may also consider financial contributions towards the mortgage or renovation, even if you are not the legal owner. This aspect will be evaluated during the financial settlement process in the divorce.
If there are children, their needs will significantly influence decisions about the family home. The court's primary concern is to ensure their welfare and stability,
which might mean the primary caregiver remains in the home with them, regardless of who moves out.
Protecting Your Interest: If you decide to move out, it's essential to protect your interests. This might include making an agreement with your spouse about how mortgage payments will be handled or registering your interest in the home legally, especially if the property is not in your name.
Legal Advice: Before making any decisions, it's wise to seek legal advice. A solicitor can help you understand how moving out might affect your case and how to safeguard your rights and interests in the property.
It's often beneficial to reach an agreement about the property and other financial matters without going to court. Mediation or negotiation through solicitors can help achieve a settlement that considers the needs and rights of both parties.

Moving out of the family home does not mean you automatically lose your claim to it in a divorce. The division of assets, including the family home, is based on a comprehensive assessment of both parties' needs, contributions, and the best interests of any children involved. Maintaining open communication with your spouse (if possible) and seeking professional legal advice are crucial steps in navigating this complex area.

Who is responsible for the mortgage when we are divorcing?

During a divorce, both parties remain responsible for the mortgage if they are joint borrowers, regardless of who is living in the property. The mortgage is a legal agreement you both entered into with the lender, and divorce does not change that contract. Here's what you need to know about mortgage responsibilities during a divorce in England & Wales:

If you are joint owners of your house and both of your names are on the mortgage, you are both legally responsible for continuing to make mortgage repayments. This responsibility exists until the joint mortgage is either paid off, refinanced under one person's name, or the property is sold, and the mortgage is cleared. It is possible to ask the court how the mortgage payments are to be met in the interim, whilst you reach a final divorce agreement.
If the mortgage is in one person's name, technically, that person is legally responsible for the payments. However, the other spouse may still have a beneficial interest in the property, especially if it is considered the matrimonial home. This means decisions about the property and the mortgage will need to be addressed as part of the financial settlement in the divorce.
It's crucial to keep the mortgage lender informed and to communicate any difficulties you might have in meeting payments. Lenders may be able to offer temporary solutions or adjustments to payment arrangements during the divorce process.
Failing to make mortgage payments can negatively affect both parties' credit scores, even if only one person has moved out. This can have long-term implications for obtaining mortgages or other loans in the future.
The responsibility for the mortgage and the property's fate will be part of the overall financial settlement in the divorce. Options might include:
Selling the Property: To pay off the mortgage and divide any remaining proceeds.
One Spouse Taking Over the Mortgage: One spouse might buy out the other's share and refinance the mortgage solely in their name, assuming they have the financial means to do so.
Continuing Joint Ownership: In some cases, both parties might agree to maintain joint ownership and responsibility for the mortgage for a period, for example, until children reach a certain age.

Given the complexity of mortgages and property ownership during a divorce, it's wise to seek legal advice. A solicitor can help you understand your options, negotiate arrangements with your spouse, and work towards a financial settlement that addresses the mortgage and property issues effectively. It's also important to consider consulting a financial advisor for guidance on managing the mortgage and protecting your financial health during and after the divorce process.

“I can hand on heart highly recommend Julian and his team. They supported me for several very challenging years during my divorce, delivering far more than the required legal protocols. They have the skills, experience, professionalism, and compassion. With the understanding that decisions are often emotive when dealing with the wellbeing of children and for me ensuring that was paramount above all else.”

Paul Rothwell – Client Testimonial

Am I entitled to half the house in a divorce?

In England & Wales, there's no automatic entitlement to half the house or any other assets in a divorce, although a common starting point is for an equal division of the family home. The division of assets, including the family home, is based on the principle of fairness and aims to meet the needs of both parties and any children. The court considers a wide range of factors to determine what is fair, and this can result in different outcomes depending on the circumstances of each case.

Needs of any children: The welfare and housing needs of the children are the court's first consideration.
Financial needs, obligations, and responsibilities of each party: This includes current and future income, earning capacity, property, and other financial resources.
Standard of living enjoyed by the family before the breakdown of the marriage: Attempts are made to ensure that neither party nor the children suffer a significant drop in their standard of living, though this is balanced against what is feasible given the family's resources.
Age of each party and the duration of the marriage: Longer marriages may see more equal divisions, but each case is unique.
Physical and mental health of each party: This can affect earning capacity and needs.
Contributions made by each to the welfare of the family: This includes both financial contributions and non-financial contributions, such as caring for the home or family.
Conduct: While rarely a factor, egregious behaviour can sometimes be considered.
Loss of certain benefits due to the divorce: This might include pension rights.
Given these factors, the division of the house and other assets can vary significantly:
Equal Split: In some cases, assets may be divided equally, but this is not a rule. It's one of many outcomes based on the fairness principle.
Unequal Split: The division may favour one ex spouse over the other to meet the needs of children or compensate for disparities in earning capacity, health, or contributions to the marriage.
Other Arrangements: Instead of a direct split, one person might keep the house while the other receives equivalent value through savings, investments, or other properties. Alternatively, arrangements like Mesher orders can defer the sale of the house until children reach a certain age.
It's essential to seek legal advice to understand how these principles apply to your specific situation. Lawyers can help negotiate a settlement that considers your needs, contributions, and future prospects. Many couples reach an agreement through mediation or negotiation, which is then made legally binding through a court order. If an agreement can't be reached, the court will decide based on the principles outlined above.
In summary, entitlement in a divorce, including to the house, is not about an automatic 50/50 split but about what's fair and reasonable, considering the entire family's needs and circumstances.

Can I force the sale of a house during a divorce?

It is possible to force the sale of a house, although this is usually seen as a last resort if parties cannot agree on what to do with the marital home, and is normally only done at the end of the process (it is very hard to secure an interim order for sale). The process involves applying to the court for an order to sell the property. This can be a complex area of law, and the decision to force a sale will depend on various factors, including the needs of any children, the financial circumstances of both parties, and the overall division of assets. Here’s how it generally works in England and Wales:

Legal Representation: Given the complexity of forcing the sale of a house, it's crucial to have legal representation. A solicitor can advise on the likelihood of success and the process involved.
Court Considerations: The court will consider several factors before deciding to force the sale of a house. These include the welfare of any children, the financial needs and resources of each party, the reasons for the proposed sale, and any other relevant circumstances.
Jointly Owned Property: If you are joint legal owners and one person wants to sell but the other does not, the court can order the sale to proceed, distributing the proceeds according to each party's interest in the property.
Financial Settlement: If it's determined that selling the house is the fairest way to divide assets, the court can order the sale even if one person wishes to retain the property.
To Provide for Children: In some cases, selling the family home may be necessary to provide financially for any children from the marriage, ensuring that both parties can rehouse themselves appropriately.
1. Application: An application is made to the court for an order for sale, usually as part of wider financial remedy proceedings.
2. Hearing: Both parties will have the opportunity to present their case to the court, explaining their position regarding the property.
3. Court Order: If the court decides that selling the house is necessary to achieve a fair financial settlement, it will issue an order for sale.
Legal Costs: Forcing the sale of a house can be costly and time-consuming. It's important to weigh the legal costs against the potential benefits of forcing the sale.
Emotional Impact: The process can be emotionally challenging, especially if one party is strongly opposed to selling the home. It's important to consider the emotional toll on all parties involved, including any children.
Negotiation and Mediation: Before resorting to court action, exploring negotiation and mediation can be beneficial. Reaching a mutual agreement outside of court can save time, money, and stress.

Forcing the sale of a house during a divorce is a significant step that comes with its own set of challenges and considerations. It’s advisable to seek legal advice to explore all options and understand the best course of action based on your individual circumstances.

Can I keep the house in a divorce?

Whether you can keep the house depends on various factors, including your financial situation, any financial agreement made with your ex partner, and what is deemed fair and reasonable by the courts if the matter is decided there. Here’s how the process generally works and what considerations come into play:

Mutual Agreement: The simplest way to keep the house is by reaching an agreement with your spouse. This might involve buying out their share or agreeing on other financial arrangements that compensate them for their share of the home's equity.
If you cannot reach an agreement and the matter goes to court, several factors will influence the decision:
Welfare of Children: If you have children, their needs will be a primary consideration. The court may decide it's in their best interest for you to remain in the house to provide stability.
Financial Contributions: The court will consider both parties' financial contributions towards the mortgage and the house upkeep, as well as non-financial contributions like childcare and homemaking.
Future Needs: The court assesses each party's future housing needs and financial resources. If you can demonstrate that you have the financial means
Mortgage Affordability: If you wish to keep the house, you must demonstrate to a mortgage lender that you can afford the payments on your own. This might involve refinancing the mortgage solely in your name.
Buyout: Keeping the house often requires buying out your spouse's share. You’ll need to have the financial means to do this, either through savings, investments, or by taking on a larger mortgage.
Legal Advice: It's essential to seek legal advice to understand your rights and the potential outcomes based on your circumstances.
Mediation: Before the matter goes to court, mediation can be a useful tool to reach an agreement. A mediator can help negotiate terms that might allow you to keep the house.
Other Assets: Sometimes, keeping the house means sacrificing other assets in the divorce settlement. You'll need to consider whether this trade-off is worth it for you in the long run.

Keeping the house in a divorce is possible but requires careful consideration of financial, legal, and emotional factors. Negotiating an agreement with your spouse is often the best first step, but if the matter goes to court, the decision will be based on what is fair and reasonable for all parties involved, especially any children. Be prepared to demonstrate your financial ability to maintain the home and consider all options before making a decision.

We hope the above article has helped answer your questions about what happens to the house when a couple divorces. Every divorce is different and we recommend you get expert advice from an experienced divorce lawyer. To speak to a member of our team call us now or request a call back.