The family home is often the most significant asset to be included and negotiated in the divorce settlement. It’s for this reason that it’s vital to understand the role of property in the divorce settlement and how the courts decide who gets the family home.
There are many different things to consider during the divorce process, one of which is the division of matrimonial assets. For most people, the divorce settlement will include property, and the property in question is often the family home. Due to the value and significance of the property, deciding who gets the house or how it will be divided between each spouse can prove to be a complicated and stressful experience.
So who does get the family home in a divorce settlement?
Always Get Expert Legal Advice First
Your first step should be to seek the advice and legal guidance of an experienced and reputable family lawyer. Doing so will ensure that you not only receive crucial advice throughout the entire divorce process but also that you avoid making ill-advised or rash decisions that could negatively impact your divorce settlement.
It’s also vital to shop around for a divorce solicitor who suits your needs, rather than the first law firm you stumble upon. This will ensure you receive expert advice from a legal professional who is an authority in their field and enable you to gain a greater understanding of the aspects of divorce that relate to your situation. This is especially important in high-net-worth divorce cases, where the potential for loss is substantial and the assets at stake are extremely valuable. For this, you’ll definitely want to find an experienced and reputable divorce solicitor.
What Happens to the House in a Divorce?
Although you might be able to divide your assets equally and go your separate ways with a “clean break order”, establishing who will get the family home is often what can cause the most problems.
Unfortunately, there’s not a quick or straightforward answer when it comes to the post-divorce ownership of the family home. Naturally, this is frustrating for couples who would prefer a swift resolution. In this scenario, your best option is to ask your family lawyer to draft a consent order if you and your spouse can agree on how all your joint assets will be divided and you are ready to get divorced. If you’re unable to agree about the division of assets, the decision will be made by the court — which will take the specifics of the case and various evidence into account to determine a fair divorce settlement.
What if Children Are Involved?
When children are caught up in the middle of a divorce, it can be confusing and stressful, and cause long-lasting emotional trauma. Due to the short and long-term impact a divorce can have on children, the court’s decisions are always made with their best interests in mind. If you can’t agree on who will get the family home in the divorce settlement, the court will prioritise your children’s needs and wellbeing when determining their living arrangements — especially if they are yet to turn 18.
The court’s primary goal is to minimise emotional trauma and prevent exposing children to hostility. This could mean the court transfers the family home to one parent, which may be part of an offsetting agreement. This is where one party will get the marital home in the divorce settlement but forfeit the right to other assets or, in some cases, be entitled to reduced spousal maintenance. Every divorce case is unique and has varying complications, so it’s essential to find a divorce solicitor who specialises in family law and has a lot of experience with your type of case.
What are ‘Home Rights’?
It’s common for one spouse to move out of the family home during a divorce in the hopes of preventing any unnecessary hostility. While some may assume that doing so forgoes their right to the property, according to the law, both parties have “home rights” until a divorce settlement has been agreed.
Home rights still apply if you aren’t the owner of the property or even if your name isn’t on the mortgage. This means you are well within your rights to remain in the property unless the court has ordered you to do otherwise or there is evidence of domestic violence. The home rights of each spouse, according to the Family Law Act 1996, are as follows:
- The right to remain in your home unless a court order excludes you from living there
- The right to ask the court to allow you to return to the house if you moved out
- The right to pay the mortgage (if your spouse stops making the payments)
- The right to register your home rights with the Land Registry to ensure that it can’t be sold, transferred or have a mortgage taken out on it without your knowledge
- The right to know about any repossession action taken by your mortgage lender
- The right to attend any mortgage possession proceedings taken out by your lender.
KMJ Solicitors is a specialist family law firm based in London. Its vastly experienced team consists of experts in all areas of family law, including divorce, separation, cohabitation agreements and prenuptial agreements. It also provides bespoke services, specialising in high-net-worth divorce.