Property and Divorce

What will happen to the family home?

The family home in divorce is not just the main asset of most couples, it may also be the most emotive asset you own. Your property may invoke strong views because of its memories and association with happier times, the fact that one of you paid more towards the deposit or owned the family home before your marriage or simply because you or the children do not want to move.

Some divorce solicitors refer to the property as the “former matrimonial home” making a relationship breakdown and the split of property on divorce sound rather cold and clinical. While the focus should be on securing the best financial settlement, it is important that your divorce and property solicitors recognise that for you or your spouse, the family home is the focus of what you want to achieve in your divorce and property settlement.

Property steps upon divorce

When it comes to divorce and house ownership, some divorcing couples find it hard to know where to start. That can be because they are so busy working and looking after the children or because deciding what should happen to the family home makes the separation and divorce seem final. The best way to sort out the family home and property on divorce is to:

1. Look at who owns the family home and property. That may be obvious to many but sometimes a property is owned in the sole name of a husband or wife. A divorce solicitor can check out the legal ownership, and if the family home or property is owned in one spouse’s sole name, they can protect the non-owning spouse’s interests with the land registry. If the family home is jointly owned, a divorce solicitor can advise, if relevant, on severing the joint tenancy as it may be in your best interests to do so
2. Think about the bills on the family home. Is there a mortgage or a second charge on the family home? Is the mortgage linked to an endowment policy? If you do not know this information, a divorce solicitor can find out on your behalf. If there is a mortgage, is it being paid? If you cannot reach an agreement on who pays the mortgage and bills on the family home then a divorce solicitor can advise on the best way to resolve matters, including applying, if relevant, for child support or spousal maintenance
3. Who is going to stay in the family home until a long-term financial settlement is reached? It may be necessary for you to both stay at the family home or, if there are domestic violence concerns, one of you may need advice on applying for a non-molestation or occupation order. A divorce solicitor always recommends taking legal advice before leaving the family home as it may not be in your best financial interests to do so until a financial settlement is reached
4. Valuing the family home. Whether you want to stay in the family home or sell it, you need to know how much the property is worth. Estate agents can be asked to carry out market appraisals to give you an idea of the best way forward or you can ask a surveyor to value the property. It is sensible to speak to your spouse and a family law solicitor about how best to get the family home valued before asking estate agents for appraisals or paying for a valuation report
5. Financial settlement and the family home. Once you know how much the property is worth, and after full financial disclosure has taken place about the value of all the other assets and pensions, your divorce solicitor can look at your best options. The decision to sell or stay in the family home may come down to the cost of downsizing or the affordability of being able to take over the mortgage
6. Financial and mortgage advice. The likelihood is that if you have a mortgage on the family home, you will need some financial and mortgage advice so you know how much you can borrow to stay at the family home or move, based on your income and taking into account any child support and spousal maintenance paid or received
7. Your divorce solicitor and the legal paperwork. If you agree on whether the family home should be sold or transferred, your divorce solicitor will sort out the necessary legal paperwork for you. If agreement cannot be reached, a family judge in financial settlement court proceedings can order the sale or transfer of the family home and make a financial court order

The divorce court and the family home

You need information about property in divorce settlement options to know the potential outcomes if you or your spouse start financial court proceedings. That will help you and your divorce solicitor negotiate the best divorce and property settlement for you.

The court looks at all your circumstances when deciding if the family home should be sold or transferred, and could order:

• The sale of the family home or other property. The equity in the property will not necessarily be divided equally by a court. Much depends on income and housing needs as well as other factors
• The transfer of the family home from joint names into the sole name of the husband or wife. The spouse receiving the property could be ordered to pay the other spouse a cash payment or the other spouse could receive all or more of other family assets, such as a second holiday home, buy to let property portfolio, family business or pension
• The transfer of the family home or property owned in the sole name of one spouse to the other spouse
• The continued ownership of the family home in joint names with one spouse having the right to live at the family home until a specified date, for example, the date the youngest child is 18 years old. As part of the financial court order, the family home would then be sold and the net proceeds divided in the percentages ordered by the judge

Divorce and Property Frequently Asked Questions

How is property split in a divorce?

Decisions on divorce property division depend on a range of factors, including if you have dependent children, your housing needs and if there are other assets. A house may need to be sold to release equity so both of your housing needs can be met.

How to protect property from divorce?

If you own a property before marriage or have inherited a property you may want to try to protect the property by signing a prenuptial or postnuptial agreement. Our specialist financial settlement solicitors can advise on inherited property and divorce.

How long after divorce can I claim property?

There is no time limit on bringing a financial application or to request transfer of property ownership after divorce. Potentially there could be a delay of years after your divorce before making a claim.

Is my wife or husband entitled to half my house if we divorce?

The court’s starting point is usually that you each get half the family assets if you get divorced. That may not mean that you get half the house. The assumption of an equal split could be displaced if there are young children, a short marriage or for other reasons.

Who gets the house in a divorce with children?

Who gets a property in divorce depends on several factors. The parent caring for the children will not automatically get the house as the decision depends on the children’s needs and factors such as the amount of equity and other parent’s housing needs and mortgage capacity. Our divorce and property solicitors will look at your circumstances and the family assets and advise on the likely outcome if you or your spouse cannot agree on who gets the house.

Contact OTS Solicitors’ divorce and property solicitors in London

For divorce and property rights advice, we can arrange a meeting at our offices in London, over the phone or online via Web Conferencing such as Zoom or Skype. For expert help, contact our divorce and property solicitors in London.