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Who gets the house in a divorce?

Reasons to choose Wilson Browne

Getting divorced can, sadly, be a very difficult experience for many people.

In addition to the emotional stress involved in ending a long-term relationship (which may be especially acute if the couple have children), the partners’ assets (including money, investments, property, and possessions) need to be divided up in as fair a way as possible.

How is a property split in a divorce?

For many couples, the most valuable asset they own is likely to be their home. Decisions taken under great pressure in the midst of a divorce over what will happen to the property could have far-reaching consequences for the couple and their children.

There is no hard and fast rule about how a house is divided in a divorce in the UK. The law will always attempt to do what is fair and take into account a number of factors. While in some cases the home may be sold and the proceeds split 50-50, there may be reasons why one party should receive a greater share of the proceeds (or even the entire proceeds), or for any sale to be deferred until the children reach adulthood.

At Wilson Browne, we have a successful track record of advising people on all aspects of divorce – including how the house will be divided.

Disagreements over this issue can cause delays to the divorce process, leading to ill feeling and costly court hearings. Many people find it advisable, therefore, to make use of our knowledge and expertise as we help them to reach an amicable agreement with their partner.

We will look below at the factors which can determine who gets the house in a divorce in the UK.

What is meant by divorce?

Divorce or dissolution is the legal process that ends a marriage (including same-sex marriage) or civil partnership. It is rarely necessary for the couple to attend a court hearing.

Who can apply for a divorce?

Anyone who has been married for over a year can apply for a divorce, providing they or their partner has a specific connection to England or Wales. This applies even if the wedding took place abroad.

What are the grounds for applying for a divorce in the UK?

Recent legislation has simplified the process of applying for a divorce in an attempt to speed up the process and reduce the stress and acrimony which can occur.

The introduction of so-called ‘no-fault divorces’ means it is no longer necessary for either party to accuse the other of wrongdoing. Instead, either individual can simply state that the marriage has irretrievably broken down.

What is the financial settlement?

This is the agreement between a divorcing couple over how their assets will be divided up. It is advisable to begin discussions on the agreement as soon as divorce proceedings start as any dispute could cause a delay to the final order (decree absolute) being granted. The most significant asset that the couple have to reach agreement on is likely to be their house.

How is a house divided in a divorce in the UK?

It is preferable for the couple to reach an agreement over who gets the house without the need for a court hearing, as by doing so they are likely to reduce the stress and cost of the divorce.

The chances of reaching a fair and amicable resolution are likely to be greater if both parties are represented by solicitors, who can use their experience and expertise to offer advice and also make the couple aware of the factors the court would be likely to take into account should the case progress to a formal hearing.

It is also useful for the couple to use an online divorce asset split calculator to work out the total value of their total assets and explore ways of dividing them fairly.

Should the partners be unable to reach an initial agreement over their home, there is still an alternative to a court hearing – going to mediation.

What is mediation?

Mediation is a process which in recent years has become an increasingly common way for couples to resolves disagreements – including what will happen to their home.
Rather than the adversarial and public nature of a court hearing, the couple meet in private with a mediator (an expert in family law specially trained for the role) who guides them through discussions as they explore possible solutions to the areas of disagreement.

There are a number of benefits to the mediation process:

  • it is likely to be quicker, cheaper, and less stressful than going to court
  • it provides a safe, neutral, and confidential environment in which people may find it easier to find compromises
  • the sessions can be arranged around child-care and work commitments
  • it is usually less acrimonious than a court hearing, making it easier for the couple to co-operate in future should they have children or shared business interests

Mediation is often able to find solutions to areas of disagreement – including how the home will be divided.

Should this not be the case, however, it may be necessary for the issue to be settled by a court.

Is my partner entitled to half my house?

The court has great discretion when it comes to deciding how a couple’s assets (including their home) should be divided to achieve the fairest possible resolution. It has the power to order that the ownership of the property be transferred to one partner, or that it be sold and the proceeds split between the two in a proportion of the court’s choosing.

In addition, the court can instruct the couple on how money, investments, pensions, and possessions should be shared out after the divorce, as well as making orders for the ongoing payment of child or spousal maintenance.

What factors will influence a court’s decision over the home?

The likely views of the court will already have been explained to the pair by their solicitors and mediator to help guide their discussions.

Although the court may start from the basic principle that there should be a 50-50 split regarding the house, its overriding priority is to be fair to both parties.

There are a number of factors which may result in the home not being divided equally among the two parties.

Children

The most important issue in a divorce settlement is to safeguard the interests of any children the couple have. A vital part of this is to ensure that they have somewhere to live so the court may give the partner who has custody the right to live in the house. This need not be a permanent arrangement – for example, the court could rule that the parent can remain in the home until the children reach adulthood, at which point the property can be sold and the proceeds split between the couple.

Future financial commitments

This is closely related to the above point. A parent with childcare responsibilities is likely to require a larger home than the non-custodial parent, for example, and so may be more likely to be allowed to continue living in the family home, or receive a greater share of the house sale.

Financial and emotional contribution to the marriage

Simply because one partner has had sole responsibility for paying the mortgage and household bills does not mean that they would be entitled to sole possession of the home following a divorce. Should the other partner have raised the couple’s children and kept the home in good order, for example, they may be entitled to an equal share of the property in recognition of this.

Time out of work

Following on from the above point, a partner who gave up their job (and earning potential) to look after the children and the home is likely to see this taken into account by the court in deciding what will happen to the property.

Future earning capacity

In seeking a fair resolution, the court will look not only at the couple’s current income but at how this is likely to be affected by the divorce. A parent with custody of the children, for example, may need to reduce their working hours in order to provide child care.

In some circumstances, this could lead to the court giving them a greater share of the proceeds of the house sale to compensate for this loss of income. Likewise, if one party is now in a new relationship with a wealthy new partner, the court may rule that they need less from the house sale than would otherwise have been the case.

Standard of living prior to divorce

The court will seek to minimise any reduction on the standard of living suffered by both parties following the divorce. This is one reason why a 50-50 split is often the ruling over the proceeds of the sale of the home – to give both partners the resources to find a new place to live. In cases where a couple own more than one house, the court may seek to ensure that both parties are left with a roof over their head.

Time married

In general terms, the longer a couple have been married, the more likely the court is to impose a 50-50 split of assets, including the family home. Should the marriage have been brief, it may be that each party will be allowed to keep any prior assets they owned individually.

Age of both parties

If one of the partners is significantly older than the other, this may result in them receiving a greater share of the property sale – on the basis that they will have a lower earning potential and so find it harder to pay a mortgage.

Can my ex force me to sell the house?

It is important to stress that only a court can order a house to be sold following a divorce. As we have seen above, it will judge each case on an individual basis and take into account a number of factors.

Who usually wins the house in a divorce in the UK?

The court will judge each case on its own merits and has wide powers of discretion to impose what it believes to be the fairest solution for all concerned. While it is not possible to generalise about the likely outcome of any particular case, it is highly advisable for anyone about to get divorced to seek expert legal advice as soon as possible.

Where can I find out more about who will get my house following my divorce?

Wilson Browne recognises that divorce can be an extremely traumatic experience due to the emotional strain and uncertainty about the future it entails. One of the biggest worries for people at this time often concerns how their house will be divided.

Our team of family law solicitors have been recognised by the Legal 500 (a who’s who of the legal profession) and will be delighted to use their expertise to guide and support you.

We will work with tact, sensitivity, and integrity as we offer clear, practical advice based on our wealth of knowledge.

Our aim is always to avoid the stress and expense of a court hearing wherever possible and we will support you in seeking an amicable agreement with your partner that will allow you both to move on with your lives.

The first hour’s consultation is free and we will be totally transparent about future costs. We believe that the large sums of money often involved in divorce (especially when a home is involved) make it very important to obtain the best possible legal advice.

With offices in Corby, Higham Ferrers & Rushden, Kettering, Leicester, Northampton, and Wellingborough we can offer a friendly face-to-face meeting at a convenient location and will also be happy to make home visits for clients with mobility issues.

Please call on 0800 088 6004 or complete our online contact form.

Helen York

Posted:

Helen York

Partner

Helen is the Deputy Senior Partner at Wilson Browne and a member of our Family Law Team. She has acted for clients across Northamptonshire for over 25 years and has a long established reputation for acting for clients in the Wellingborough area and regularly sees…