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Who gets the house in a divorce is one of the biggest decisions you’ll have to agree on when you split from your spouse or civil partner. We look at how the process works.
There are no set rules as to who gets the house in a divorce and no prescribed way of splitting the house during a divorce. It depends on individual circumstances. For example, in some cases, the family home may be sold and the proceeds divided between the parties. Or one spouse may be awarded the property while the other spouse is compensated in another way. Read on to find out more details of how this works.
The main options of what happens to the house when you divorce are:
You can find more detail on each of these options and what to consider in our guide selling a house after divorce.
There are different ways you can decide who gets the house in a divorce:
If you’re on good terms with your ex, you may be able to agree the terms of your divorce including who gets the house without going to court. But don’t make the mistake of not getting legal advice, you’ll need it to protect your long-term interests. To make the agreement legally binding, you would need to fill in a Consent Order form and send it to the courts.
If you can’t agree, your next step is mediation. This is a voluntary and confidential form of alternative dispute resolution. If you can agree on issues around property, money and childcare through mediation it avoids the cost and stress of going to court.
However, if you’re getting divorced and it’s not possible to come to an agreement outside court, in order to divide assets inlcuding who gets the house in a divorce, the judge will consider a number of factors including:
Assets acquired during the marriage are considered to be ‘marital assets’ which can all potentially be divided. The courts also consider where a spouse may have lost assets they would have had, were it not for the marriage. Such as if one spouse stayed at home to look after children while the other went to work.
If you own the property as Tenants in Common and there is a Declaration of Trust or Deed of Trust document that states the division of shares, if you then marry, the strength of the Deed of Trust is considerably weakened as the rules under the Matrimonial Causes Act 1973 will take precedence. When divorcing, ‘all the circumstances of the case’ including the trust deed will be considered by the courts.
The court’s main aim will be to lessen the impact on any child’s life, so the primary caregiver of the children will usually have the advantage when it comes to remaining in the family home. There may be a court order in place to defer the sale of a house until a certain event happens, like all dependents turning 18.
You’ll need to get a house valuation if you want to buyout your partner’s share of the house or sell your home and divide the proceeds of the sale. A valuation survey is recommended as it’s an independent, professionally-prepared assessment of a property’s value, based on a set of standards set out by RICS.
Find local chartered surveyors to carry out a valuation survey.
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If you want a quick online valuation now to give you an idea of the sale and rental valuation of your property, use our free, instant online valuation tool.
If you and your spouse have a joint mortgage, you’re both responsible for paying the mortgage, even if one of you doesn’t live there anymore. Also, if one spouse doesn’t pay their share the other party can be held responsible to pay the full amount.
So it’s important to have a discussion early on about how the mortgage is going to be paid during your separation. Any missed or late payment will affect your credit rating and can impact on your ability to get a mortgage on another property.
To remove your partner’s name from a joint mortgage they must also be removed from the title deeds, this involves applying for a “transfer of equity”. However, in order to agree to this, your lender will want to be confident that you can afford the mortgage on a single income instead of the previous two.
Through this process, one partner is legally transferring the ownership to another. If you don’t have the money to buy your ex out you can apply to take out a bigger loan by remortgaging. But you’ll need to prove to your lender that you can afford the repayments. It’s worth speaking to a fee-free mortgage broker. They may be able to find you a better deal and they can also match you with a lender that’s most likely to accept your application. And if you’re getting divorced they’ll answer any mortgage questions you have too.
Speak to a fee-free mortgage broker today about your options.
Get fee free mortgage advice from our partners at L&C. Use the online mortgage finder or speak to an advisor today.
If you are married or in a civil partnership, HMRC will not charge you stamp duty land tax on the portion you are buying from your partner.
You’ll need to get a solicitor to handle the transfer of equity process. Find a lawyer to undertake your transfer of equity with our partners at Law Superstore.
If your name is not on the deeds to your home and you are married or in a civil partnership, you can protect your rights to live at the property. Speak to a lawyer about how to go about this as soon as you think it is likely that you are going to divorce. They should be able to register a Home Rights Notice at the Land Registry on your behalf. This means the house cannot be sold without your knowledge or pending legal proceedings.
You can usually only live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.
If the property has been in one person’s sole name, never been the marital home and any income from the property has been kept in a separate bank account and not been used for the purpose of the marriage, it may be possible to argue that it should be considered a non-matrimonial asset and ring-fenced from any financial settlement. But be sure to get specialist legal advice tailored to your circumstances.
If you have a joint mortgage with your ex, you’re both jointly and equally liable for making your mortgage payments, irrespective of who lives in the property
If you and your spouse or civil partner rent your home you should seek legal advice to understand the tenancy agreement and how this relates to your legal position and responsibilities.
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