During divorce or separation proceedings, deciding what will happen to the family home can be an understandable point of contention. It is often the case that the family home is one of the things neither party is willing to compromise on, which can make coming to an agreement particularly difficult.
Here we discuss the details related to what happens to a house during divorce and how it can be divided, either voluntarily or through the courts.
What are the common outcomes for a house following divorce?
Of course, every divorce is unique and the circumstances relating to the end of a marriage will differ on a case-by-case basis. However, there are a number of common outcomes for a house following the end of a marriage, which can either be decided voluntarily or through court proceedings. These outcomes may include:
- Selling the house, with the equity being split between both parties. This does not necessarily have to be a 50/50 split, though this is often the starting point for negotiations.
- One partner ‘buys out’ the other and remains in the house.
- One partner stays in the house, while the other receives a lump sum or retains a stake in the house.
- A Court Order, such as a Mesher Order, is put in place. This is where the sale of the house is deferred until a specific event happens, like the children from the marriage turning 18.
Can you make a voluntary agreement about the house during divorce?
Yes, both parties will usually have an opportunity to make a voluntary arrangement for the future of the house, alongside anything else that is considered to be a matrimonial asset (such as savings, stocks, pensions or cars).
These arrangements can be made using various methods of Alternative Dispute Resolution, such as mediation.
How do the Courts decide what happens to the house following divorce?
If you are unable to come to a voluntary agreement over what should happen to the house following divorce, the Courts will be tasked with finding a suitable resolution.
When settling matrimonial finances, the Courts are required to follow a set of rules found in Section 25 of the Matrimonial Clauses Act 1973. The factors included are applied in every case and are referred to as a Section 25 Checklist.
The Section 25 Checklist includes factors such as:
- The income and earning capacity of each party
- Financial needs, obligations and responsibilities for the future
- Standard of living before the breakdown of the marriage
- The age of each party to the marriage and duration of the marriage
- Any physical or mental disabilities of either party of the marriage
- The contributions both parties made to the marriage, both financial and non-financial
- The conduct of each party
- Marriage benefits which either party will lose upon the end of the marriage
The Section 25 Checklist is in no particular order, but it should be noted that certain factors may be given more weight than others, depending on the circumstances of each case.
It may also be necessary for the Courts to give special consideration to certain facts of a divorce and how this might affect the final outcome. For example, this might include situations where there are inherited assets, non-matrimonial assets or business assets.
All of these factors will influence the Court’s decision regarding the outcome of the house and what is considered to be a fair and appropriate course of action.
How does the Court divide a house when there are children?
The primary consideration of the Court is always to focus on the welfare of any children involved in a divorce. This means that the decision over what happens to the house following divorce may be affected by the likely impact this will have on the children.
The Courts will also take the factors included in the Section 25 Checklist into consideration before coming to a decision regarding the house. For example, if a child is ordered to live with the ‘primary caregiver’, but they cannot afford to leave the family home, a deferred sale or transfer option may be considered.
Do you need advice about divorce or separation?
At Preston Redman, we have a dedicated team of divorce and separation solicitors who have specialist experience in helping couples make arrangements for their home following a divorce.
Our family lawyers service clients across Bournemouth, Poole and the wider Dorset area, with our main aim being to help you and your former partner reach an amicable agreement out of court wherever possible. We are members of Resolution, an organisation of family lawyers who are committed to constructive family law resolutions.