I am Getting Divorced. Can I Keep the House?

Friends and family may tell you that on divorce the wife gets to keep the house and the husband keeps his pension. However, you can't rely on financial settlement advice from friends and family as not everyone has a marriage where the wife is the primary child carer or the husband is the main breadwinner.

Assuming one person will get to keep the house can lead to difficulties in reaching agreement on what is a fair divorce financial settlement. In this article our specialist divorce financial settlement solicitors take a look at who gets to keep the house after a separation or divorce.

Online and London based family and divorce settlement solicitors

For advice about your best financial settlement options or representation in financial court proceedings call the specialist family law team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Expert legal advice on who keeps the house

Would you ask your friend to give you dental treatment because they recently had a filling so know a bit about dentistry? Definitely not. The same should go for legal advice on divorce as no two separations or divorce are ever exactly the same.

Keeping the house is a very emotive topic for some divorcing couples as it can feel as if the husband or wife who gets to keep the house has ‘won’, even if you get to keep other assets or have enough money to buy another house. If who gets to keep the house is an emotive subject it is best to get legal advice and gather the information you need first so that when the topic is raised by you or your solicitor, you have the options and answers.

Deciding on who gets to keep the house

If you can't agree on who gets to keep the house either you or your spouse can apply to the court for a financial court order. In the financial settlement court proceedings, the judge has the power to:

• Order that the house is transferred from joint names to one name.
• Order that the house is transferred from the sole ownership of one spouse to the other spouse.
• Order that the property is sold and order who will get the proceeds of sale. All the proceeds could to go to one spouse or the equity could be shared after discharge of the estate agent and other fees and payment of the mortgage redemption figure.
• Order for a deferred sale of the property with the sale being delayed until, for example, your youngest child reaches the age of eighteen.

A judge will need information on the family home and other assets to work out who should keep the family home. The information needed will depend on whether there is a mortgage on the family home.

The family home, the mortgage and divorce financial settlement proceedings

If you have a mortgage on the family home then someone else (namely, the lender) has an interest in who gets to keep the family home as the mortgage company lending is secured on the property.

Where there is a mortgage on the family home you will need to know:

• The mortgage redemption figure- what amount of borrowing is secured against the house so you can calculate the equity once the property has been valued.
• The monthly mortgage payment – so you can calculate if you could afford to pay the mortgage on your salary alone or, if you are going to be getting spousal maintenance and child support, whether you could afford to pay the mortgage. If you are hoping to keep the house and you are the spouse that will be paying spousal maintenance and child support, is the monthly mortgage payment affordable given those anticipated outgoings? You will need to know if the mortgage is interest only or if the mortgage is at a fixed interest rate and the risk that the mortgage monthly payment may go up when the fix finishes.
• Transferring the mortgage – if the house is owned in joint names and you want it transferred to your name will the mortgage company agree to this? If the house is owned by your husband or wife then will you be able to take out a new mortgage in your name so the existing mortgage can be paid off when the house is transferred to you? You will need advice about spousal maintenance and child support and the likely overall financial settlement to help you understand whether transferring the mortgage or you taking out a mortgage in your name is likely to be feasible, depending on the extent of your mortgage capacity.
• Mortgage early redemption penalties – some mortgage companies charge an early redemption penalty if you pay the mortgage off early. The charge (that can run into thousands of pounds) can be triggered if the house is sold or transferred from joint names to one name. You may be able to avoid the charge by negotiating with the mortgage company or delaying the sale or transfer until the mortgage early redemption penalty date has expired.
• Family help – if your mortgage capacity isn’t large enough to take on the mortgage on your own and there are no family savings to reduce the amount of the mortgage then would the mortgage company accept your parent or other family member standing as guarantor to the mortgage so you can get to keep the house?
• Mortgage capacity – how much can you borrow on mortgage? The answer may determine if you should keep the house or if the house should be sold and the equity split if that is the only way that the two of you can both afford a property. Your mortgage capacity may not only be affected by your income but also your age as if you are in your sixties the mortgage term on offer may be shorter resulting in a higher monthly mortgage payment to find. Mortgage capacity can be tricky to calculate as not all mortgage companies will accept spousal maintenance or child support or pension income when calculating how much you can afford to borrow. Other mortgage companies can be very flexible.

Get the right professional help

If you are questioning whether you will get to keep the house it isn’t as simple as getting your husband or wife to agree to that where you have a mortgage on the family property. If it is possible for you to keep the house then that may not actually be the best option for you if it means that your husband or wife will be keeping the family business or their pension as they actually may be worth more than the equity in the family home. These complexities mean that its important to speak to a divorce solicitor so you understand whether keeping the family home is really the best option for you in the short and long term and to ensure that you are getting a fair financial settlement.

Online and London based family and divorce solicitors

For advice on keeping the house and financial claims on divorce call the specialist family law team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.