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Who Gets the House in a Divorce?

Breakup Advice Divorce
7 mins to read

Here at The Law Superstore, we know that when you’re getting divorced, what happens to the marital home can be a big worry.

We’re here to guide you through this process by providing you with the perfect solicitor to meet your needs. Our job is to make things a little easier in a process that is never a walk in the park.

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Common outcomes for the house

The way divorce law works in the UK means that no two cases are the same. There are many factors that affect what happens to a house after divorce, but the most common options are:

  • Selling the house and splitting the equity between you and your partner. This split does not have to be 50/50.
  • Buying out one partner and remaining in the house. The house does not need to be sold, but this often requires a new mortgage.
  • One partner staying in the house while the other receives a lump sum or retains a stake in the property. They would then receive an agreed share of the proceeds when the house is sold.
  • One partner remaining in the house until certain conditions are met, such as all children turning 18, after which the house can be sold.

The options available to you will depend on your circumstances. For example, you and your ex-partner might be able to reach an agreement without involving the courts. Whether you have children, or whether one of you can afford to move out, may also be taken into account.

Splitting the house without going to court

You do not need to go to court to decide what happens to your marital home after divorce. In the first instance, if you have a prenuptial agreement with your spouse, it may set out what happens to your property and assets. If not, there are still several ways to resolve matters without going to court.

If you are on good speaking terms with your ex-partner, you may be able to settle issues related to the divorce without appearing before a judge. Even so, it is still advisable to speak to a solicitor for legal advice.

You can also enter mediation with your ex-partner if you cannot come to an agreement on your own. Mediation can help former partners reach agreement on property, finances, and childcare. It can also help you avoid court, which can be expensive, draining, and time-consuming.

Going to Court

In some cases, former partners cannot come to an agreement outside of court. When dividing marital assets, the judge will consider the Section 25 factors under the Matrimonial Causes Act 1973, which include:

  • Income, earning capacity, financial resources, and property of each spouse.
  • The financial requirements and needs of each spouse.
  • What each spouse has contributed to the welfare of the family.
  • The value of any benefit one spouse would lose because of the divorce.
  • The standard of living the family enjoyed before the marriage broke down.
  • The mental and physical condition of each spouse.
  • The ages of each partner.
  • The conduct of each spouse, if it would be unfair for the court to ignore it.

Marital Assets and the law

The courts see marriage as a partnership. As a result, assets acquired during the marriage are usually considered marital assets and can potentially be divided. The courts also consider whether one partner may have lost out financially because of the marriage. For example, one person may have stayed at home to care for children while the other worked. This also means that the name on the title deeds may have little impact on who gets to live in the property after divorce.

Protecting your rights to live on your property

If your marriage is breaking down and your name is not on the deeds of your home, you may want to take steps to protect your position. By registering a Notice of Home Rights against the property with the Land Registry, your partner may be prevented from selling the property without your consent.

Who gets the house in a divorce with children?

A court’s priority is establishing whether there are any children involved in the divorce. In law, a child’s welfare is the most important consideration.

Children of all ages can be deeply affected by divorce, so the court’s main aim is to reduce the impact on their lives. This means that the primary caregiver will often remain in the family home. Again, the title deeds do not necessarily determine who stays in the marital home after divorce.

Court Orders

There are several types of court orders to be aware of. These are usually designed either to prioritise the children’s needs or to ensure that both partners retain some interest in the property. One of the most common is a Mesher Order.

A Mesher Order delays the sale of a house until a specific event takes place, such as all dependent children turning 18. This usually allows the primary caregiver to stay in the house with the children. The other partner may receive other assets to balance the arrangement and may also keep a stake in the property. When the property is eventually sold, both parties then receive their agreed share of the proceeds.

One drawback of a Mesher Order is that both parties often remain on the mortgage. This can make it harder for the partner who moves out to buy another home. A Deferred Charge Mesher transfers the deeds and mortgage to the partner remaining in the house, while the partner moving out keeps a percentage interest secured by a second mortgage.

A Martin Order is less common. It may be made where the partner moving out has no immediate need for sale proceeds, and there are usually no children involved. This order gives one partner the right to occupy the property for life or until remarriage.

It is also worth noting that, with all of these orders, Capital Gains Tax may still become payable when the property is eventually sold.

Renting

If you and your ex-partner are renting, the situation is slightly different. Whether you can continue living in the property will depend on your tenancy agreement, who pays the rent, and what your landlord decides.

  • If you have signed the tenancy agreement, you can remain in the property. If the tenancy is only in your partner’s name, they may ask you to leave.
  • If the tenancy is in your partner’s name, you may be able to apply to the court for an occupation order. This is usually a last resort and sets out who has the right to live in the family home. It can cost between £1,000 and £5,000 and usually involves two court hearings and specialist legal advice. In Scotland, you would need to apply to the Sheriff Court for occupancy rights, which can last for up to six months.
  • If you are joint tenants, you both have the right to live there. If the tenancy is not fixed-term, you may be able to discuss new arrangements with your landlord.

Navigating property ownership after divorce often depends on whether you can reach an agreement together or whether court involvement becomes necessary. In either case, the aim is usually to achieve a fair outcome while protecting any children involved.

Mediation or legal advice from a solicitor can often make the process smoother and help you avoid the stress and expense of going to court.

When you are looking to get a divorce or need legal advice on divorce proceedings, The Law Superstore is here to help. You can find and compare solicitors for matters such as divorce and property in the Family and Disputes section.

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